September 24, 2010
STATE BAR’S COMMITTEE ON PROFESSIONAL ETHICS
ISSUES OPINION ON LAWYER’S USE OF PUBLIC INFORMATION
OBTAINED THROUGH SOCIAL NETWORKING WEBSITES
Committee determines lawyers may use public
information posted on social networking sites absent the use of any
deceptive or misleading conduct
In what is believed to be the first opinion in the nation on point,
the New York State Bar Association’s Committee on Professional
Ethics determined that an attorney representing a party in pending
litigation may access the public pages of another party’s social
networking website for the purpose of obtaining information about that
party.
The explosion in the use of popular social networking sites, such as
Facebook and MySpace, has led to a substantial number of legal questions
that were never previously presented, often in the area of personal
privacy rights. The opinion rendered by the Committee on Professional
Ethics focused solely on whether an attorney could access information
from a party other than the attorney’s client where the
information sought was contained in public pages posted by that party
and accessible to all members of a particular social networking
site.
According to Opinion 843, “A lawyer who represents a client in
a pending litigation, and who has access to the Facebook or MySpace
network used by another party in litigation, may access and review the
public social network pages of that party to search for potential
impeachment material.
“As long as the lawyer does not ‘friend’ the other
party or direct a third person to do so, accessing the social network
pages of the party will not violate Rule 8.4 of the New York Rules of
Professional Conduct (prohibiting deceptive or misleading conduct), Rule
4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1)
(imposing responsibility on lawyers for unethical conduct by non-lawyers
acting at their direction).”
To access and read the committee’s full opinion, please visit
www.nysba.org/ethics.
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The 77,000-member New York State Bar Association is the
official statewide organization of lawyers in New York and the largest
voluntary state bar association in the nation. Founded in 1876, State
Bar programs and activities have continuously served the public and
improved the justice system for more than 130 years.
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