New York City Bar Association Ethics Opinion Addresses Use of Social Network Sites for Investigative or Background Research

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More and more attorneys and judges are using social media. Some use it for its intended purpose of social networking (and, for the lesser intended purpose of marketing). Others take advantage of the information contained in these sites for an unintended purpose - investigative research.

Legal pundits have argued (online and in print) about the ethical issues for attorneys utilizing this information in the matters they handle. Few Bar Associations have opined on the topic. One exception is the Association of the Bar of the City of New York. They addressed the following specific question:

Is it ethical for an attorney to send a "friend" request to an unrepresented person if the attorney uses her real name and profile without also disclosing the reasons for making the request?

The Association of the Bar of the City Of New York Committee on Professional and Judicial Ethics - Opinion 2010-2 (Sept. 2010) available at http://www.abcny.org/Ethics/eth2010.htm, concluded that there would be no violation of the rules of professional conduct if an attorney or her agent uses her real name and profile to send a "friend request" to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request. However, the Committee noted that a, "lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent." The Committee said:

 

Rather than engage in "trickery," lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful "friending" of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual's social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line.

Accordingly, a lawyer may not use deception to access information from a social networking webpage. Rather, a lawyer should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence.

It's important to note that this opinion is specific to the New York City Bar. Furthermore, not all Bar Associations are in agreement. Read this article for information on the Philadelphia and New York State Bar Association's position on similar questions. Finally, consider that while the New York City Bar's opinion is more permissive, the New York State Bar controls an attorney's license in that jurisdiction.

Lawyers can earn one hour of MCLE credit for reading this article and the related Legal Ethics opinion by completing this quiz.

 

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