Legal Ethics and The Social Network


It comes as no surprise that social networking sites can be sources of valuable evidence in litigation. One can easily imagine an attorney clicking through a witness' MySpace photo album with an eye towards attacking her credibility at trial or reading a Twitter feed, hoping for an update that could successfully dispute damages. As tempting as it may be to "Facebook stalk" the opposition, lawyers in New York recently received guidance on the ethical limits of this practice. Last month, both the New York State Bar Association and the New York City Bar Association issued opinions that outline the appropriate scope of obtaining evidence from social networking websites.

Both opinions address the question of how a lawyer may view and access the social network pages of an adverse party in pending litigation, ultimately concluding that New York attorneys are allowed to scour social network pages for incriminating evidence as long as those pages are public. According to the New York State Committee on Professional Ethics, "Obtaining information about a party available in a [public] Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted." NY Comm. on Prof'l Ethics, Op. 843 (9/10/10). Typically, social network websites have privacy controls that allow users to choose who may view their profiles. A page is "public" if it is available to all members in the applicable network. So, if a witness has failed to customize the privacy settings on her Facebook page, that page may be "public" and thus fair game for attorneys seeking evidence.

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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.

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