Social media sites such as Facebook and MySpace often provide the opposing party with crucial information regarding events that bear directly upon the underlying litigation and/or the credibility of litigants or witnesses. A common concern for attorneys, however, is whether they are ethically permitted to visit an opposing party’s social media sites, and, if they are, whether there are any restrictions upon their behavior.
In Formal Opinion 843, issued Sept. 10, 2010, the New York State Bar Association provided the first New York State ethics committee opinion to address these issues and opined that a lawyer may visit the public areas of an opposing party’s social media site that are accessible to all members of the network as long as the lawyer does not engage in any form of deception (for example, deception in order to become a member of the site). New York’s Rules of Professional Conduct Rule 8.4(c) prohibits an attorney from engaging in any conduct that is deceitful or fraudulent. This opinion provides that where the attorney neither “friends” nor asks a third party to do so in order to access the information, there is no intention to conceal the truth. The opinion compares the information available on a social media profile to information that is publicly available through online or print media.
The Opinion can be found here.
This Opinion underscores the importance of taking the time to warn clients about the perils of social media sites as they relate to their litigation. Due to the difficulty of predicting how information on a clients site could be used against the client, the best advice is for the client to simply shut down any social media sites while litigation is pending.