Accessing an Adversary’s Public Social Networking Information — N.Y. Professional Ethics Opinion 843

Facebook, Twitter, LinkedIn and MySpace are among the top social media websites that have culturally transformed electronic communications and social interactions. Inevitably, these platforms have also affected litigation practice and present myriad ethical dilemmas. One such dilemma is whether an attorney can access an adverse party’s social networking website to obtain information about the party, including impeachment material.

In Professional Ethics Opinion 843, issued on September 10, 2010, the New York State Bar Association’s Committee on Professional Ethics concluded that an attorney representing a party in pending litigation may access the public pages of another party’s social networking website to obtain publicly available information about that party. The Committee observed that some social networking websites and/or users do not require pre-approval or consent to access member profiles, and thus the profiles are accessible to all members. While the Committee found that such information on social networking websites is akin to publicly accessible online or print media, it also made clear that there are limitations to the attorney’s conduct on social networking sites:

• An attorney cannot “friend” or otherwise make contact with the party. Such conduct would fall within the purview of Rule 4.2 of the New York Rules of Professional Conduct (“Rules”), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s lawyer.

• An attorney cannot employ a third party to “friend” the party. Such conduct would fall within the purview of Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or mispresentation;” Rule 4.1, which prohibits lawyers from making false statements of fact or law to a third person; and Rule 5.3(b)(1), which holds an attorney responsible for the conduct of employed non-attorneys who violated the Rules.

In short, the rule is you may look, but do not “friend.”