The New York City Bar Association's Social Media Research Ethics Opinion

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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
FORMAL OPINION 2010-2

OBTAINING EVIDENCE
FROM SOCIAL NETWORKING WEBSITES

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The New York City Bar Association's Social Media Research Ethics Opinion

Question 1 Formal Opinion 2010-2 states that lawyers can use trickery to "friend" potential witnesses on social networking sites because Niesig v Team allows for trickery in discovery:

True

False

Question 2 Opinion 2010-2 references the article Divorce attorneys catching cheaters on Facebook as an example of how information found on social networking sites could be used in divorce and family law cases. In the article, divorce lawyer Ken Altshuler says the first place his team checks for evidence is Facebook.:

True

False

Question 3 To meet her ethical obligations, an attorney (or her agent) must use her real name and profile to send a "friend request" to obtain information from an unrepresented person's private social networking website AND must also disclose the reasons for making the request. :

True

False

Question 4 If an attorney or her agent use a false name to send a "friend" request to an unrepresented person to gain access to that person’s private social networking website to use in litigation, this would be an ethical request as long as they disclose their reasons for making the request:

True

False

Question 5 Rule 4.1 states that "in the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person" but setting up a false profile to interest a targeted witness would not violate this rule.:

True

False

Question 6 Opinion 2010-2 states that the Rules of Professional Conduct "are violated whenever an attorney "friends" an individual under false pretenses to obtain evidence from a social networking website." :

True

False

Question 7 Failing to disclose the reasons for making a friend request to an unrepresented person does not involve making a false statement of fact or law to a third person under N.Y. Professional Conduct Rule 4.1 (2010).:

True

False

Question 8 Failing to disclose the reasons for making a friend request to an unrepresented person does not involve dishonesty, fraud, deceit or misrepresentation under N.Y. Professional Conduct Rule 8.4(c) (2010).:

True

False

Question 9 As provided by Rule 8.4(a), "[a] lawyer or law firm shall not...violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Thus, a lawyer would violate Rule 8.4(a) if that lawyer induces his investigator to use deception (such as setting up a false profile or using a false name) to "friend" an unrepresented person to obtain information from the user of a social networking website. :

True

False

Question 10 The investigator in the above question could also be charged by the Ethics Committee for violating Rule 8.4(a).:

True

False

Question 11 Under Rule 5.3(b)(1), a lawyer is responsible for conduct of a nonlawyer employed or retained by or associated with the lawyer, but this would not ever cover an investigator whom the lawyer retains.:

True

False

Question 12 If a lawyer does not order his investigator to use a false name to send a "friend request" to obtain information from an unrepresented person's private social networking website, but this is what the investigator does, this would not violate Rule 5.3(b)(1) even if the lawyer later ratifies it.:

True

False

Question 13 Opinion 2010-2 holds that because there are existing ethics opinions which find that deception may be permissible in rare instances "when it appears that no other option is available to obtain key evidence," this exception is also allowable with social networking pages.:

True

False

Question 14 2010-2 discusses "justifying limited use of undisclosed taping of telephone conversations to achieve a greater societal good where evidence would not otherwise be available if lawyer disclosed taping" and cites ABCNY Formal Op. 2003-02 which modifies NY City 80-95 and 95-10. The authors of Opinion 2010-2 decide not to extend this reasoning to social networking.:

True

False

Question 15 Even though the Opinion authors state that lawyers can use formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page instead of using trickery, they also acknowledge that the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq., raises questions as to whether certain information is discoverable directly from third-party service providers such as Facebook.:

True

False

Question 16 Despite the importance of informal discovery (as the Opinion notes by citing Muriel v. Intuit, 8 N.Y.3d at 506, 511), there are some ethical boundaries that shouldn’t be crossed when attempting to "friend" an unrepresented person.:

True

False

Question 17 In this Opinion, the authors are dealing only with an unrepresented party. In footnote 4, however, the Opinion authors imply that their Opinion would be different if the party was represented because of Rule 4.2, which prohibits lawyers and her agents from communicating with someone they know is represented, unless the party’s lawyer consents in advance or the conduct is authorized by law.:

True

False

Question 18 The NY City Bar opinion states that a lawyer or her agent crosses an "ethical line" when she falsely identifies herself in a "friend request.":

True

False

Question 19 Trickery can be justified as a necessary last resort when an attorney or his agent want to try to induce an unrepresented person to accept their friend request.:

True

False

Question 20 Although not discussed in this Opinion, it would probably be a good idea not to introduce evidence into trial that was obtained via trickery from a private profile.:

True

False

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The New York City Bar Association's Social Media Research Ethics Opinion

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