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When news came out that two New Jersey defense attorneys had spied on a plaintiff through Facebook, there was obvious buzz within the legal community over bright-line rules and attorney ethics. Just what qualifies as an "unauthorized" communication?
Lawyers should always take steps to tread carefully in these "novel ethical issues." First impression or not, you don't want to end up being the poster child.
A New Jersey ethics case arose out of two defense attorneys who used their paralegal to gain access to the opposing party's Facebook page by having her send a friend request to that party and getting it accepted. The attorneys who represented the plaintiff only found out about the arrangement when they sought to add the very same paralegal as a trial witness and found oddities in the Facebook printouts.
At first the New Jersey Supreme Court did not decide on the issue of whether or not the defense lawyers had violated ethics or should be sanctioned for what they did. But once the New Jersey Office of Attorney Ethics chimed in, things started to get ugly for the lawyers. New Jersey's high court unanimously opined that the case should move forward. Apparently, snooping around online just had to be heard.
Naturally, the defense lawyers defended by saying that their actions were in "good faith" and that they had not committed any unethical conduct. In their declarations, they said that they were "unfamiliar with the different privacy settings on Facebook."
But the fact that they can plausibly say that presents a bit of first impression confusion for lawyers. Just what exactly are your jurisdiction's views on social media spying? Most jurisdictions' ethics rules are based off the Model Rules and tend to eschew really tight, bright-line language. The best thing for attorneys to do when faced with this situation is to be overly careful. If informal discovery requires you to cook up another identity in order to access information the opposing party specifically does not want you to see, your alarm bells should be ringing.
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