Click the link above to access the latest ethics opinions of the New York Bar Association.
Social networking sites are good sources of relevant and material data that can impeach adverse parties or their witnesses.
When may a trial lawyer access the Facebook or Myspace pages of adverse parties or their witnesses for purposes of impeachment during the trial?
The New York State Bar Association’s Committee on Professional Ethics has determined that an attorney representing a party in pending litigation may access the public pages of another party’s social networking website for the purpose of obtaining information about that party.
The opinion rendered by the Committee on Professional Ethics focused solely on whether an attorney could access information from a party other than the attorney’s client where the information sought was contained in public pages posted by that party and accessible to all members of a particular social networking site.
According to Opinion 843, “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 of the New York Rules of Professional Conduct (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 non-lawyers acting at their direction).”
