Wednesday, October 20, 2010

Social Media Update I

Every day now, there are fascinating developments taking place where social media and the workplace intersect.  Here are a few that have caught my attention in the last few days.  More to come tomorrow.

The New York State Bar Association’s Committee on Professional Ethics quite recently issued an opinion addressing the question of whether a lawyer may view and access the Facebook or MySpace pages of a party other than the lawyer’s client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, where 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.  With the question so structured, the Committee had little difficulty in concluding that the lawyer could access the Facebook or MySpace network used by another party in litigation to search for potential impeachment material so long as the lawyer does not “friend” the other party or direct a third person to do so.  See also Philadelphia Bar Association’s Professional Guidance Committee’s Opinion 2009-02 (Mar. 2009), where it held that it was improper for a lawyer to ask someone to “friend” an unrepresented adverse party in a pending lawsuit to obtain potential impeachment material.  There, the witnesses’ Facebook and MySpace pages were not generally accessible to the public, but rather were accessible only with the witnesses’ permission, that is, only the witness allowed someone to “friend” her.  The third person whom the lawyer proposed to have “friend” the witness would have concealed the association with the lawyer and the real purpose behind “friending” the witness.  However, the New York State Bar’s opinion noted a “key distinction” between its opinion and the Philadelphia opinion:  “[T]he Philadelphia opinion concern an unrepresented witness, whereas our opinion concerns a party—and this party may or may not be represented by counsel in the litigation.  If a lawyer attempts to ‘friend’ a represented party in a pending litigation, then the lawyer’s conuct is governed by Rule 4.2 (the “no-contact” rule), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s lawyer.  If the lawyer attempts to ‘friend’ an unrepresented party, then the lawyer’s conduct is governed by Rule 4.3, which prohibits a lawyer from stating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer’s role, and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party’s interests are likely to conflict with those of the lawyer’s client.  Our opinion does not address these scenarios.”

The New York City Bar Association was presented the following question:  May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?  To answer the question, the Bar narrowed the question to whether a lawyer, acting either alone or via an agent, may use “trickery” or “deceptive” behavior to “friend” potential witnesses.  The Bar’s concern being, the relative ease with which one can “deceive an individual in the virtual world” as compared to the “real world.”  The Bar then pointed to New York Rules of Professional Conduct 4.1 (“In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”) and 8.4(c) (“A lawyer or law firm shall not . . . engage in conduct involving dishonest, fraud, deceit or misrepresentation.”) in opining that an attorney or her agent may not “friend” an individual under false pretenses to obtain evidence from a social networking website.  In the interest of informal discovery, however (see, e.g., Muriel, Siebert & Co v. Intuit Inc., 8 N.Y.3d 506 (2007) (stating that “the importance of informal discovery underlies our holding here”); Neiseg v. Team I, 76 N.Y.2d 636, 372 (1990) (same)), the opinion states that an attorney or her agent “may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.” 

New York Superior Court Directs Plaintiff to Grant Defendant Access to Her Facebook and MySpace Accounts

In Romano v. Steelcase Inc., 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct. Sept. 21, 2010), Judge Jeffrey Spinner of the Supreme Court of New York sitting in Riverhead, ordered plaintiff to grant defendant access to her Facebook and MySpace accounts, including deleted and historical pages, on the grounds that the photos on those pages were inconsistent with her claims of loss of enjoyment of life.  The court found the information sought by defendant to be both material and necessary to the defense, stating that it appears from plaintiff’s public profile page on Facebook that she was “smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.”  Given this “public” photograph, the court continued:  “In light of the fact that the public portions of plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”  See also Karen Barth Menzies and Wesley K. Polischuk, Is Your Client an Online Social Butterfly?, Trial (Oct. 2010), in which the authors discuss the false sense of security many social media account holders attribute to the “private” setting.  For example, the article cites to Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr. 3d 858 (Cal. App. 2009), in which the court stated “the fact that [the plaintiff] expected a limited audience does not change the [] analysis.  By posting the article on, [the plaintiff] opened the article to the public at large.  Her potential audience was vast.”
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