Is It Permissible for a Lawyer to Befriend a Witness on Facebook In Order to Gather Information for a Lawsuit?

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Ever worry that what you do on a social networking site could be used against you in a court of law? While no one is recommending that Facebook provide users with its own version of the Miranda rights, two Bar Associations have recently considered this issue in the context of lawyers using information from social networking sites to gather impeachment material to use against witnesses in civil lawsuits.

On September 10, 2010, the New York State Bar Association, Committee on Professional Ethics, followed the March 2009 opinion of the Philadelphia Professional Guidance Committee in ruling that it is improper for a lawyer to befriend an adverse witness on Facebook for the purpose of obtaining potential impeachment material to use at a deposition. Both legal ethical bodies “determined that the proposed ‘friending’ by a third party would constitute deception in violation of Rules [of Professional Conduct] 8.4 and 4.1, and would constitute a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e. that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit).” New York State Bar Assoc. Op. 843 (9/1//10).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nick Akerman, Dorsey & Whitney LLP | Attorney Advertising

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