Ezel / Ethics Opinions / NYSBA
NYSBA 2010-09-10

Can a lawyer view an opposing party's public Facebook or MySpace pages to gather impeachment material, without 'friending' the party?

Short answer: Yes. A lawyer may access the public social networking pages of another party for impeachment material, as long as the lawyer does not 'friend' the party or direct anyone else to do so, and uses no other deception.
Currency note: this opinion is from 2010
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 843: Accessing an opposing party's public social media

Short answer: A lawyer may view and access the public social networking pages of a party other than the lawyer's client to look for impeachment material, as long as the lawyer does not "friend" the party (or direct someone else to) and uses no other deception.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The question is whether a lawyer in pending litigation may view the Facebook or MySpace pages of a party other than the lawyer's own client to gather information, including impeachment material, where the lawyer relies only on public pages accessible to all members of the network and does not "friend" the party. The opinion notes that no prior New York opinion had addressed the issue, and turns to the Philadelphia Bar Association's Opinion 2009-02 for guidance.

In that Philadelphia opinion, a lawyer proposed to have a third party "friend" an unrepresented witness whose pages were not public, providing truthful information about the third party but concealing the connection to the lawyer and the purpose. The Philadelphia committee concluded that was impermissible, because the deceptive "friending" implicated rules paralleling New York's Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), Rule 4.1 (false statements of fact to a third person), and Rule 5.3 (responsibility for a nonlawyer's conduct the lawyer directs or ratifies); the third party would omit the material fact that the access was sought to gather litigation material.

The opinion distinguishes the situation before it. Here the pages are accessible to all members of the network, so the lawyer engages in no deception by simply viewing them, provided the lawyer uses no deception in any other way (for example, to join the network). The opinion analogizes this to obtaining information from publicly accessible online or print media, or a subscription service like Nexis or Factiva, which is plainly permitted. It concludes the lawyer may view and access another party's public profiles for potential impeachment material so long as the lawyer neither "friends" the other party nor directs anyone else to do so.

A footnote draws an important boundary the opinion does not resolve: the Philadelphia opinion involved a non-party witness, while this opinion involves a party who may or may not be represented. If a lawyer tries to "friend" a represented party, Rule 4.2 (the no-contact rule) governs; if the lawyer tries to "friend" an unrepresented party, Rule 4.3 governs (no implying disinterest, correcting misunderstandings about the lawyer's role, and no legal advice beyond advising to obtain counsel). The opinion expressly does not address those "friending" scenarios.

In practice

Under this opinion, a litigator may review an opposing party's public social media pages for impeachment material without violating Rule 8.4(c), Rule 4.1, or Rule 5.3(b)(1), because viewing publicly available content is not deception. The opinion holds that the line is crossed by "friending" the party, directly or through a third person, or by any other deception (such as deceptively joining the network). The opinion does not decide whether or how a lawyer may "friend" a represented party (Rule 4.2) or an unrepresented party (Rule 4.3); those scenarios are flagged but left open.

Common questions

Q: Can a lawyer look at an opposing party's public Facebook or MySpace page for use in litigation?

A: Yes. The opinion concludes a lawyer may view and access another party's profile if it is available to all members of the network, treating it like other publicly accessible media.

Q: Can the lawyer "friend" the party to see non-public posts?

A: The opinion does not permit deceptive friending. It concludes that accessing public pages is fine only if the lawyer does not "friend" the party or direct someone else to do so, and uses no other deception.

Q: What rule applies if the party is represented by counsel?

A: The opinion's footnote states that attempting to "friend" a represented party is governed by Rule 4.2, the no-contact rule, but the opinion does not resolve that scenario.

Q: What if the lawyer wants to contact an unrepresented party online?

A: The footnote says Rule 4.3 governs contact with an unrepresented party (no implying the lawyer is disinterested, correcting misunderstandings, and giving no advice beyond securing counsel), and the opinion does not address it.

Background and rules framework

The opinion interprets several New York Rules with Model Rule counterparts: Rule 8.4(c) (Model Rule 8.4(c), dishonesty and misrepresentation), Rule 4.1 (Model Rule 4.1, truthfulness to others), Rule 5.3(b)(1) (Model Rule 5.3, responsibility for nonlawyer conduct), and, by way of the boundary footnote, Rule 4.2 (Model Rule 4.2, no-contact) and Rule 4.3 (Model Rule 4.3, dealing with unrepresented persons). The opinion applies these to passive viewing of publicly posted social-media content.

Citations and references

Rules of Professional Conduct:

  • MR 4.1 (truthfulness in statements to others)
  • MR 4.2 (communication with represented persons)
  • MR 4.3 (dealing with unrepresented persons)
  • MR 5.3 (responsibilities regarding nonlawyer assistance)
  • MR 8.4 (misconduct)
  • NY Rules 4.1, 4.2, 4.3, 5.3(b)(1), 8.4(c)

Other opinions cited:

  • Philadelphia Bar Op. 2009-02 (March 2009): deceptive "friending" of an unrepresented witness is impermissible

See also

Source