The extraordinary difficulties facing lawyers seeking to fulfill their obligations to protect and preserve client confidentiality in the 21st century were discussed in the Nov. 5, 2010, article in this column, "Protecting Client Information." The present article focuses on other challenges to the old ethical order that are presented by the existence, and portability, of digital information. First, this article will explore what (if any) limits the ethics rules establish with regard to mining information on the internet generally, and social network sites in particular. Second, the article will address the problem of who "owns" digitally stored information -- clients, lawyers individually, or law firms -- with special reference to the problems that arise when lawyers make lateral moves between firms.
LIMITS ON 'MINING'
Two recent bar association opinions in New York address the question of what limits the New York Rules of Professional Conduct place on the freedom of lawyers to conduct searches on the internet generally, and social network sites in particular. In Formal Opinion 843 (Sept. 10, 2010) of the Committee on Professional Ethics of the New York State Bar Association ("NYSBA 843"), the digest summarizes the opinion thus: "A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation."
Interestingly, while reaching the same conclusion, the parallel opinion of the Committee on Professional Ethics of the New York City Bar, in Formal Opinion 2010-2 ("NYC 2010-2"), states its conclusion in the negative: "A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent" (emphasis added). Like the only prior ethics opinion to address this subject, the Philadelphia Bar Association's Professional Guidance Committee, Opinion 2009-02 (March 2009), both of the New York opinions analyze the propriety of "friending" an unrepresented adverse witness in a pending lawsuit to obtain potential impeachment material.
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By: Anthony E. Davis