NY Bar Rules It's Ethical For Lawyers To Scour Facebook For Damaging Info

The New York Bar Association has decreed that it’s okay for lawyers to troll through Facebook and other social media sites for damaging info on their opposition. There is an important caveat, though. It’s only ethical if the info is publicly available. “Friending” someone for the purpose of accessing data the person only makes available to their “friends” is not kosher, nor is it cool to ask someone else to do it for you.

Just one more reason to think carefully about what you post on social media sites, and make sure you evaluate your privacy and information display options on all social media sites you participate in.

NY Bar: Lawyers may comb social media for dirt [Boston Herald]

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  1. wrjohnston91283 says:

    It’s only ethical if the info is publicly available.

    They had to have a ruling to determine it was ok to use publicly available info?

    • seth_lerman says:

      It seems it was more to determine how far they could go. Common sense tells me it’s ok to use publicly posted info. Needs a ruling to say “befriending someone to get info they keep private is not admissible due to it’s being obtained under false pretenses”.

    • PunditGuy says:

      Yeah, I thought that was a little odd. But then I realized that a profession of overthinkers has decided to overthink the concept of social media, and all was right in the world.

      As for the friending-to-get-info thing — wouldn’t any good private investigator do that? I wouldn’t expect lawyers to get their own hands dirty with such a thing… I’d just expect them to bill for it.

      • danmac says:

        As for the friending-to-get-info thing — wouldn’t any good private investigator do that? I wouldn’t expect lawyers to get their own hands dirty with such a thing… I’d just expect them to bill for it.

        IANAL, but I would hope that information gleaned via deceptive means by a private investigator (e.g. “friending” someone under false pretenses) would be inadmissible as evidence. I may be completely wrong, of course, but it seems logical.

        • Billy says:

          This ruling has nothing to do with what is admissible as evidence. It has to do with the bar association that licenses attorneys in New York. That association has ethics rules. This statement from them has to do with its ethics rules.

    • Mighty914 says:

      I think the decision had more to do with whether the information on Facebook is reliable enough to be admissible in court.

      • Liam Kinkaid says:

        As long as my wife doesn’t find out I’m cheating on her…with my girlfriend…Morgan Fairchild! Yeah, that’s the ticket!

      • allknowingtomato says:

        The New York Bar does not get to decide what is admissible in court. The rules of evidence are laws, and the New York Bar is not a legislative or judicial body entitled to draft or interpret those laws. Reliability concerns are bound up in the concepts of hearsay and admissions by part opponents, both already handled in evidence law.

        More likely this is about whether such a practice of information gathering could result in sanctions for the lawyer engaging in it. looking at public information on facebook might be considered more active than, say, overhearing a conversation not intended for your ears while minding your own business (say, on the subway). The bar was clarifying that such actions will not result in disciplinary action, but that intentionally friending someone to get access to information only intended for friends is potentially grounds for discipline.

  2. Grungo says:

    “Nor is it cool to ask someone else to do it for you.”

    What about your client? I don’t understand why a soon-to-be-ex spouse can’t peruse the FB page of the husband/wife and use it against him or her.

    • Brontide says:

      Spousal privilege?

      • Liam Kinkaid says:

        I thought spousal privilege prevented one spouse from being forced to testify against another. In a divorce proceeding, it’s always one spouse testifying against the other. I don’t know why one spouse’s FB info would be off limits if it was accessible to the soon to be ex-spouse.

        • allknowingtomato says:

          Under FRE there are 2 spousal privileges, and they are both very different. One has to do with confidential communications between just spouses during marriage; either party can stop the other party from testifying to those fact, no matter whether the marriage ends (if my husband tells me he’s afraid of kittens and that he’s never told anyone else, then we get divorced, he can still stop me from telling others about his kitten phobia. That is the privilege you are thinking of, and information on facebook does not get this privilege (since presumably friends besides spouses could see it so it was not a confidential marriage privilege)

          The other privilege is the privilege a spouse has to not testify against the other spouse, regardless of what the spouse knows or how. If i am friends with my spouse and know a bunch of stuff that his friends know, I cannot be forced to talk about it while married, though the testifying spouse holds this privilege and the other spouse cannot stop testimony if the testifying spouse waives the privilege. If i get divorced, i CAN be compelled to discuss what I saw on facebook.

          The above was a gross simplification.

        • Aesteval says:

          Would it be off limits in that case? The issue at hand appears to be in relation to lawyers using false pretenses of some sort to get access to specific information. If a spouse already had access to that information, I don’t see that using it would be contrary to the rules that were laid out. It definitely stands that it could be an entirely different situation than what is laid out with the mentioned rules.

  3. sufreak says:

    I disagree. If you are dumb enough to friend a lawyer, or someone you don’t know, you deserve to get your info used.

    • backinpgh says:

      This.

    • jimmyhl says:

      A lot of legal and ethical rules are imposed precisely to protect people from their own stupidity. The Miranda rule, many consumer protection rules and laws, the entrapment doctrine, you name it.

      • TuxthePenguin says:

        Bingo, give this man a cookie.

      • sufreak says:

        By doing so, we’re destroying natural selection. I think we protect people too much from their own stupidity. And I don’t think Miranda is a good example. People may not know their rights. (due process, lawyer, etc).

        But to require by law that people protect themselves is just dumb. I think seatbelts are important devices. As are helmets. But if you choose not to use one, then you are doing the gene pool a favor.

    • Veeber says:

      Actually, the way Facebook is setup now, if the lawyer sends you a Facebook friend request, they automatically get access to your Wall. And they made it harder to reject them because it is a two step process.

      http://techcrunch.com/2010/09/20/facebook-not-now-follow/

      • Rectilinear Propagation says:

        According to the article, they get access to your public information.

        But yeah, I didn’t know about this. I have some requests just sitting there that I guess I have to actively reject. I don’t have anything public but rather than wait for them to change things again…

        • teke367 says:

          I do think you also are able to view their updates. If you aren’t friends, I think you only get the most recent update if you click on their profile (if its public), while if you are awaiting confirmation, you would have access to any updates during that time.

          Still public info, but it does ofters more than if the lawyer would normally have otherwise.

      • Aesteval says:

        What I don’t get is why this is coming up as “new” now. I’ve seen similar things happening for months. This entire ‘person that doesn’t approve your request’ leading to their public posts appearing on your wall isn’t a new feature and it may very well be a lingering bug.

  4. Tommunist says:

    They lost me at “lawyers and ethics”…

  5. moorie679 says:

    I just find it odd that people put information on there that they would not tell a perfect stranger on the road. Hey what is your address, when are you going to be out of town ?

    • Blueberry Scone says:

      Yeah, I don’t get that, either.

      I’ve been quietly deleting things about me on my F/B profile. I don’t want any random person to know my birthday, where I went to school/when I graduated, etc. It’s almost spooky as to what you can find out about someone just by looking at their profile – if they’re married/in a long-term relationship, or if they’re single; if they have kids; where they live; stuff they do for fun.

    • Rectilinear Propagation says:

      Except a lot of people WOULD tell this stuff to random strangers. Haven’t you ever been stuck listening to someone on a bus or in line someplace? It’s insane the kind of stuff people have told me just because they’re bored or love listening to themselves talk and I happened to be a captive audience.

      Worse is when random strangers ask you this stuff. I was in a cab once and the driver, who was driving me home, asked me if I live alone.

  6. DigitalShawn says:

    So whats to stop someone from making a public page of a defendant and spreading lies & rumors about them for the lawyer to find? How is that admissible in court as not part of hearsay?

    • Thyme for an edit button says:

      They would have to show that the page belonged to the defendant. This kind of stuff would probably be argued before the judge.

      • jimmyhl says:

        Bingo. The rules of evidence require that before being admitted in evidence all exhibits be properly authenticated, that is, supported by facts or other evidence showing that the offered item (in this case the entries from a My Space/Facebook page) is what the party offering it say it is. In doubtful cases , the opposing attorney could and should require a showing that the page was posted and maintained by the party to the suit. Most likely this would require confirming testimony from Facebook/MySpace business records showing the name, email address etc of the poster. That burden would be on the party offering the entries in the page as evidence. BTW: IAAL.

    • Tim says:

      Same as what would happen if someone gave false information to a jury in testimony. Like any evidence, the defense can challenge the accuracy of it.

  7. tedyc03 says:

    Of course it’s ethical. It’s public.

  8. jessjj347 says:

    Employers (large corporations) already have access to private information, aka, “backdoor access”.

  9. TheMonkeyKing says:

    Well, duh!

  10. nextyearsgirl says:

    This makes me nervous. I think it makes sense that they would be able to use publicly-available information (which is why I have everything on Facebook listed as “friends only” and you can not find me if you search for me), but I also worry that this will turn into cases of victims having their personal indiscretions used against them — like “this girl says she was raped at this party, but here are pictures of her wasted in a miniskirt from her Freshman year. Clearly she was asking for it!”

    • Aesteval says:

      Would it? I think that using even publicly available material in a court would require that it be shown as being relevant to the case.

    • Billy says:

      Whether or not such information would be allowed at trial is a different question than what the NY Bar Association was asking.

      The bar association only stated that it’s not unethical for its members to gather information from public social networking sites.

  11. peebozi says:

    ethics on law! LOL

    by definition, lawyers are unethical.

  12. duncanblackthorne says:

    Yet another reason to never, never, ever use social networking sites, or at least never use your real information and photo on them.

    Most people don’t seem to have a clue as to how valuable their privacy is, or even what ‘privacy’ really means, and they likely won’t until it’s way too late to do anything about it!

    • HannahK says:

      I don’t understand why anyone should be concerned unless they are involved in a court case and have something to hide from the court?

  13. duncanblackthorne says:

    Yet another reason to never, never, ever use social networking sites, or at least never use your real information and photo on them.

    Most people don’t seem to have a clue as to how valuable their privacy is, or even what ‘privacy’ really means, and they likely won’t until it’s way too late to do anything about it!

  14. teke367 says:

    Maybe I’m smart, maybe I’m old, maybe I’m just boring, but I’ve never put anything on Facebook that I was ever worried about ending up in court.

    • AGuyNamedRuss says:

      …or maybe you’re fooling yourself.

      Nothing personal, I don’t know you and don’t presume to know what you post on Facebook and similar sites, but I’m betting there are many people who feel the way you just expressed who really should be concerned about the things they’ve published for the world to see.

  15. Lucky225 says:

    why is it ‘not cool’ to friend someone to get the information, private investigators obtain info like this using pretext all the time, is friending someone not just another, legal, similar ruse?

    • Crim Law Geek says:

      Probably because when you approach a witness, etc to ask them questions you are supposed to identify yourself as a lawyer, make sure they are not represented by a lawyer themselves, and ensure they know you are not their lawyer and thus your conversation is not privileged.

  16. Quake 'n' Shake says:

    It’s only ethical if the info is publicly available. “Friending” someone for the purpose of accessing data the person only makes available to their “friends” is not kosher, nor is it cool to ask someone else to do it for you.

    This is also known as “common sense.”

  17. LegalBill says:

    An important point to note is that this ruling just deals with whether a lawyer (or someone working on a lawyer’s behalf) may, independently and without the aid of the court, gather information from Facebook (or other social media sites). This case does NOT limit a lawyer’s ability to gain any sort of information, including from social media site accounts whose owners have disabled public access, through the civil discovery process or from third parties through subpoenas. It is common practice for lawyers to request through the discovery process all of the information available on social media site accounts, and if you are a party to the litigation, you are required to comply. Destruction of evidence (e.g., deleting of posts) that are responsive to a discovery request or that are relevant to a claim one has made against you is sanctionable by a court. If you put it online in any form, count on it being discovered by the other side.

  18. notgoodenough says:

    The New York State Bar Association is just a fancy name for the Lawyers Union in New York. Who cares what they think is ethical or not? Lawyers can already access this stuff and do so regularly. It’s really up to the judge to decide on how the personal information was gained is ethical or not. I

    • Crim Law Geek says:

      Because when you are hauled in front of the Grievance Committee on an ethics charge, you can say “well, the organization that represents 99.9% of all lawyers licensed in this State (including the members of the Committee) said it was Kosher”, thus showing it was generally accepted as proper and you can’t be faulted for doing the same thing everyone agreed was OK.

      This is the same as a Doctor saying “all the journals said penicillin cures this, so its not my fault it didn’t work this time”.

  19. DEVO says:

    Lawyers have ethics?