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Lawyers Ethically Obtaining Evidence from Social Networking Websites

Lawyers and their agents may not ethically resort to trickery on the Internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds, states a formal opinion from the New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2010-2).

Because lawyers are increasingly searching sites like Facebook, Twitter and YouTube for evidence, “it is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated in whole or part by postings on a Facebook wall,” states the opinion. “Nor is it hard to imagine a copyright infringement case that turns largely on the postings of certain allegedly pirated videos on YouTube. The potential availability of helpful evidence on these internet-based sources makes them an attractive new weapon in a lawyer’s arsenal of formal and informal discovery devices. The prevalence of these and other social networking websites, and the potential benefits of accessing them to obtain evidence, present ethical challenges for attorneys navigating these virtual worlds.”

In particular, the opinion finds that “ an attorney’s direct or indirect use of affirmatively ‘deceptive’ behavior to ‘friend’ potential witnesses” crosses the line of ethical behavior under the New York Rules of Professional Conduct (the “Rules”). According to the opinion, “The applicable restrictions are found in Rules 4.1 and 8.4(c). The latter provides that ‘[a] lawyer or law firm shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ N.Y. Prof’l Conduct R. 8.4(c) (2010). And Rule 4.1 states that ‘[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.’ Id. 4.1. We believe these Rules are violated whenever an attorney ‘friends’ an individual under false pretenses to obtain evidence from a social networking website.”

The Committee noted that, consistent with the Court of Appeals’ oft-cited policy in favor of informal discovery, an attorney or her agent may send a “friend request” using her real name and profile “to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request. While there are ethical boundaries to such ‘friending,’ in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements,” states the opinion.

Part of the opinion’s reasoning is based on the Committee’s view that it may be “easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness’s home, view the witness’s photographs and video files, learn the witness’s relationship status, religious views and date of birth, and review the witness’s personal diary, the witness almost certainly would slam the door shut and perhaps even call the police. In contrast, in the ‘virtual’ world, the same stranger is more likely to be able to gain admission to an individual’s personal webpage and have unfettered access to most, if not all, of the foregoing information.”

The full opinion can be read here: http://bit.ly/aoSBWr

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