Ethics Opinion 843
NEW YORK STATE BAR ASSOCIATION
Impeachment material, pending litigation, social networks
Committee on Professional Ethics
Opinion # 843 (09/10/2010)
Topic: Lawyer’s access to public pages of another party’s social networking site for the purpose of gathering information for client in pending litigation.
Digest: A lawyer representing a client in pending litigation may access the public pages of another party’s social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.
Rules: 4.1; 4.2; 4.3; 5.3(b)(1); 8.4(c)
1. May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network?
2. Social networking services such as Facebook and MySpace allow users to create an online profile that may be accessed by other network members. Facebook and MySpace are examples of external social networks that are available to all web users. An external social network may be generic (like MySpace and Facebook) or may be formed around a specific profession or area of interest. Users are able to upload pictures and create profiles of themselves. Users may also link with other users, which is called “friending.” Typically, these social networks have privacy controls that allow users to choose who can view their profiles or contact them; both users must confirm that they wish to “friend” before they are linked and can view one another’s profiles. However, some social networking sites and/or users do not require pre-approval to gain access to member profiles.
3. The question posed here has not been addressed previously by an ethics committee interpreting New York’s Rules of Professional Conduct (the “Rules”) or the former New York Lawyers Code of Professional Responsibility, but some guidance is available from outside New York. The Philadelphia Bar Association’s Professional Guidance Committee recently analyzed the propriety of “friending” an unrepresented adverse witness in a pending lawsuit to obtain potential impeachment material. See Philadelphia Bar Op. 2009-02 (March 2009). In that opinion, a lawyer asked whether she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for impeaching the witness at trial. The witness’s Facebook and MySpace pages were not generally accessible to the public, but rather were accessible only with the witness’s permission (i.e., only when the witness allowed someone to “friend” her). The inquiring lawyer proposed to have the third party “friend” the witness to access the witness’s Facebook and MySpace accounts and provide truthful information about the third party, but conceal the association with the lawyer and the real purpose behind “friending” the witness (obtaining potential impeachment material).
4. The Philadelphia Professional Guidance Committee, applying the Pennsylvania Rules of Professional Conduct, concluded that the inquiring lawyer could not ethically engage in the proposed conduct. The lawyer’s intention to have a third party “friend” the unrepresented witness implicated Pennsylvania Rule 8.4(c) (which, like New York’s Rule 8.4(c), prohibits a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”); Pennsylvania Rule 5.3(c)(1) (which, like New York’s Rule 5.3(b)(1), holds a lawyer responsible for the conduct of a nonlawyer employed by the lawyer if the lawyer directs, or with knowledge ratifies, conduct that would violate the Rules if engaged in by the lawyer); and Pennsylvania Rule 4.1 (which, similar to New York’s Rule 4.1, prohibits a lawyer from making a false statement of fact or law to a third person). Specifically, the Philadelphia Committee determined that the proposed “friending” by a third party would constitute deception in violation of Rules 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).
5. Here, in contrast, the Facebook and MySpace sites the lawyer wishes to view are accessible to all members of the network. New York’s Rule 8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the network). Obtaining information about a party available in the 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. Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.CONCLUSION
6. A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).
One of several key distinctions between the scenario discussed in the Philadelphia opinion and this opinion is that the Philadelphia opinion concerned an unrepresented witness, whereas our opinion concerns a party – and this party may or may not be represented by counsel in the litigation. If a lawyer attempts to “friend” a representedparty in a pending litigation, then the lawyer’s conduct is governed by Rule 4.2 (the “no-contact” rule), 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. If the lawyer attempts to “friend” an unrepresentedparty, then the lawyer’s conduct is governed by Rule 4.3, which prohibits a lawyer from stating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer’s role, and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party’s interests are likely to conflict with those of the lawyer’s client. Our opinion does not address these scenarios.