Ethical Bounds of Using Evidence From Social Networks

Millions of people every day post their thoughts, concerns, and day-to-day experiences on Facebook, MySpace, Twitter, and other social networking sites.[FOOTNOTE 1] The contents of these sites have become a potentially invaluable source of information for attorneys preparing for litigation.

Divorce attorneys, for instance, routinely scour an adversary's Facebook page for evidence of infidelity.[FOOTNOTE 2] In criminal cases, it is common for prosecutors to obtain and exploit incriminating evidence obtained from a defendant's social networking account.[FOOTNOTE 3] And attorneys defending personal injury actions may find helpful impeaching evidence on a plaintiff's Facebook page.[FOOTNOTE 4]

Indeed, there are an infinite number of contexts within which information posted on social networking sites may be relevant to litigation. With the growing use of social networking sites, lawyers need to be aware of the ethical issues such evidence presents.

Three recent ethics opinions have begun to define the ethical bounds within which New York lawyers may exploit information on social networking sites.

The most recent of these addresses the ethical limits within which lawyers may monitor jurors' social networking accounts during trial.[FOOTNOTE 5] The other two, addressing the propriety of accessing social networking sites[FOOTNOTE 6] and "friending" witnesses,[FOOTNOTE 7] respectively, were previously discussed in Mark Berman's article appearing in the Nov. 2, 2010, issue of this publication.[FOOTNOTE 8]

To Continue Reading: Click Here
----------------------------------------------
Source: law.com
By: H. Christopher Boehning and Daniel J. Toal