An important ethics advisory opinion on lawyers’ use of social-networking sites has been issued by the Association of the Bar of the City of New York Committee on Professional Ethics. As discussed below, it seems that the opinion conflicts with an advisory opinion issued by the Philadelphia Bar Association. Because these are the only two advisory opinions of which I am aware that directly address the issue of social media as a source of potential evidence, a conflict in their conclusions makes things a bit complicated.
The New York opinion, titled Obtaining Evidence from Social Networking Websites, addresses the following question:
May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?
The committee answered the question as follows:
A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.
The opinion is an interesting one with quite a bit of discussion on the “real-world” use of social media in the legal profession. For example, it recognizes the potential value of Facebook evidence for divorce cases and YouTube videos for copyright-infringement cases. The opinion also acknowledges that many of the ethical risks in social media arise from the “informality of communications on the web.”
The opinion finds that an attorney (or her agent) may send a friend request for the purpose of obtaining information from an unrepresented person’s social-networking site without disclosing the purpose of the request, provided that the lawyer does disclose her real name and profile. So long as the attorney or investigator “uses only truthful information to obtain access,” and otherwise complies with the rules of ethics, there is no obligation to affirmatively disclose the purpose of the contact.
The opinion goes so far as to say that lawyers “should” seek information from “social-networking websites such as Facebook, by availing themselves of informal discovery, such as the truthful ‘friending’ of unrepresented parties.”
The New York opinion seems to conflict with the advisory opinion issued by the Philadelphia Bar Association, in which the committee was asked whether a lawyer’s agent could send a friend request to an unrepresented third party, whereby the agent would state only truthful information but would not reveal that he is affiliated with the lawyer or the “true purpose” for the request. The Philadelphia committee concluded that this would constitute deception, regardless of whether only “truthful” information was offered. Here, on the other hand, the New York opinion seems to conclude that, as long as what you do say is truthful, you’re not necessarily being deceptive by virtue of the fact that you’re not disclosing the true purpose.
