New York

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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NY Ethics Committees Tackle Social Media Mining

The ethics of attorneys using of social media is a hot topic lately. As I mentioned last week, the American Bar Association?s Commission on Ethics 20/20 just issued a call for com- ments on the issue of lawyers use of social media tools for client development.

And, in September, two different New York-based ethics com- mittees, the New York State Bar Association Committee on Pro- fessional Ethics and The Association of the Bar of the City of New York Committee on Professional Ethics, each issued very interesting ethics decisions regarding lawyers? use of social media sites to mine for evidence in pending cases.

The State Bar?s opinion (Opinion 843 [9/10/10]) addressed the issue of whether an attorney may view and access publicly available social media pages of a party (as opposed to an unrepresented witness) other than his or her client in a pending matter to secure information for use in the lawsuit, where the lawyer does not ?friend? the person on a social network.

The committee likened an attorney?s use of public information available on a party?s social networking profile page ?to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva,? conduct that is ?plainly permitted? under New York?s Rules of Professional Conduct. Accordingly, the committee con- cluded that as long as a lawyer does not engage in deception to obtain access to a social media network, the lawyer may ethi- cally access a party?s public social media profiles to obtain evi- dence for use in pending litigation.

The New York City Bar?s opinion (Formal Opinion 2010-2) addressed the issue of whether an attorney may, directly or through an agent, ?friend? an unrepresented person (as opposed to a party) on a social networking site with the intent to obtain evidence from their social media profile for use in pending litigation.

In March of 2009, the Philadelphia Bar Association Professional Guidance Committee addressed this exact issue in Op. 2009-02. Although the New York City Bar did not reference the Philadelphia opinion, it reached the very same conclusion, holding that an attorney or agent may not contact the person without first disclosing the reason for the friend request: ?Rather than engage in ?trickery,? lawyers can ? and should ? seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful ?friending? of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual?s social net- working page.?

Both New York committees did a great job of distilling the issues to their essence, by comparing the online interactions at issue to similar offline interactions. Rather than engaging in knee jerk reactions and forbidding the use of social media sites by attorneys as evidence gathering tools, both committees analyzed the specific scenarios at issue and reached thoughtful, common sense conclusions.

These opinions support my belief that professional rules of conduct, as they now exist, are more than sufficient to govern lawyers? Internet-based activities. As I?ve oft repeated, online interaction simply is an extension of offline interaction and does not constitute a sepa- rate category that merits more stringent oversight. Rather, as exemplified by the New York committees? analysis in the ethics opinions discussed above, common sense application of existing rules is all that is required.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.