Can attorneys view and access Facebook page of a party other than his or her client in a pending litigation

The New York State Bar Association, Committee on Professional Ethics in Opinion 843 ruled that an “attorney 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.”   On the other hand, the Committee  ruled that a lawyer is prohibited by the Professional Rules of Conduct from requesting the adverse party to be its  “friend” or directing an unrelated third-party to do so on its behalf (this would violate Rule 8.4 which prohibits deceptive or misleading conduct).  The Committee reasoned that an attorney which “friends” a represented party in a pending litigation runs afoul of Rule 4.2 (the “no-contact rule”) which strictly prohibits attorneys from communicating with a represented party, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.  A lawyer that attempts to “friend” an unrepresented party is in violation of Rule 4.3, which prohibits an attorney from giving legal advice to a pro-se litigant (an unrepresented party) for purposes other than advice that it secure legal counsel.  Therefore, if you are in a pending litigation and your Facebook or MySpace page is public, an opposing attorney can access your social networking page to obtain information to be used against you in a pending lawsuit.    If you are being sued or believe that you may have a viable legal claim against another, please call Erik M. Bashian, an experienced New York trial attorney to discuss.

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