Social networking websites have become a treasure trove for lawyers looking for damaging information that could be used to impeach an opposing party or any adverse witnesses in a lawsuit. As a result, the New York Bar Association’s Committee on Professional Ethics looked into the following question:
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?
The New York Bar concluded that a lawyer may ethically access and view the public social network pages of another party in a pending lawsuit to search for potential impeachment material. In reaching its conclusion, the New York Bar analogized accessing information on Facebook or MySpace to obtaining information from other publicly accessible online or print media, or through subscription services such as Nexis. The New York Bar also distinguished its opinion from one issued by the Philadelphia Bar Association’s Professional Guidance Committee which looked at whether a lawyer may ethically “friend” an unrepresented adverse witness in a lawsuit to obtain potential impeachment information.
In the Philadelphia Bar’s opinion, a lawyer proposed asking a third party to “friend” the witness in order gain access to the witness’ private Facebook and MySpace pages by providing truthful information about him or herself. However, the third party would conceal his or her relationship with the lawyer and the real purpose for “friending” the witness (to obtain impeachment information). The Philadelphia Bar concluded that it would be unethical for the lawyer to engage in this sort of conduct under the Pennsylvania Rules of Professional Conduct which prohibits lawyers from making false statements and engaging in dishonest, fraudulent or deceitful conduct. The New York Bar also reached the same conclusion.
The California State Bar has not yet issued an opinion on the propriety of lawyers accessing social networking websites. However, it is likely the California Bar will agree with the opinions of the New York and Philadelphia Bars. Further, California courts are already facing motions to exclude evidence found on the Internet. Since it appears lawyers will continue to have the ability to scour social medial sources for impeachment material, the best advice is for employers to develop social media guidelines. Employers should also provide training to all employees on the impact their social media activities may have on potential or pending litigation.
LCW provides sample social media policies and guidelines in our Privacy Issues in the Workplace workbook for public agencies. Additionally, LCW’s “Caught in the Net” provides training on social media issues.