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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.