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NY Bar: Lawyers May Comb Social Media For Dirt

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ALBANY, N.Y. (AP/WCBS 880) — The New York Bar Association said Friday it’s ethical for lawyers to comb social networking websites to collect damaging information on opposing parties in lawsuits.

The 77,000-member association said the explosion in the use of networks like Facebook and MySpace raises new legal questions about privacy rights. This is the first interpretation of how New York’s Rules of Professional Conduct for lawyers applies.

The group’s Committee on Professional Ethics concluded that attorneys in litigation can access the public pages of another party’s site to get information about that person, as long as it’s accessible to all members of the network.

“Obtaining information about a party available on the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted,” the committee said.

James Walker, a lawyer and panel member, reiterated that point to WCBS 880 saying “accessing a public page…is really no different from using any other public service to do research.”

“And so there is no issue under our rules of professional conduct,” Walker said.

The panel cited a related 2009 Philadelphia Bar Association opinion that lawyers can’t use deception to get accepted onto someone’s private contact list — known as “friending” — in order to get otherwise private information.

“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” rules against deceptive or misleading conduct, the committee concluded.

The Philadelphia opinion involved Pennsylvania’s rules of conduct in a case about contacting an adverse witness.

The New York committee noted its ruling did not specifically address friending scenarios, but pointed out that they would be subject to conduct rules.

Walker also dismissed the notion of privacy concerns in using information from the social networking sites.

“There isn’t a privacy concern because…the potential witness has made it available to anybody who accesses Facebook or MySpace,” Walker said.

Attorneys who violate conduct rules in New York can face court grievance committee discipline, ranging from admonishment to losing their law licenses.

(TM and Copyright 2010 CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2010 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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