Thinking Ethics: Tapping the Social Network
| Publication year | 2011 |
| Pages | 17 |
Thinking Ethics
Tapping the Social Network
By Mark M. Iba, Stinson Morrison Hecker LLP, Kansas City, Mo., miba@stinson.com
Years ago, the buyers of a large, delinquent note accomplished what had long eluded the selling bank: obtaining a quick payoff. The buyers attributed their success to their discovery that the borrower owned a successful sports team, a fact that was not in the loan files and was not otherwise readily available. They had done their homework, and it literally paid off.
Lawyers know only too well that there is no substitute for good intelligence on an adversary. Whether the representation involves a transaction or litigation, obtaining the right information about the other side can make all the difference. Accordingly, in this age of social networking, Facebook, Twitter, YouTube, and numerous other Internet sources present "attractive new weapon[s] in a lawyer's arsenal of formal and informal discovery devices" that can and should be used.[1]
There are, of course, ethical risks associated with using – and not using – these so-called discovery weapons. In particular, using social networking sites to obtain information about an opposing party or witness implicates a lawyer's obligations relating to honesty, supervision of nonlawyers, and communication with represented persons.[2]
Public Pages on Social Networking Sites
Perhaps the easiest issue to resolve is whether a lawyer may view and access the information that an adverse party or a witness posts on Web pages that are available to the public or at least to all members of a particular network like Facebook, MySpace, or LinkedIn. This does not require deception or communication with the person and does not appear to implicate other ethical rules. In addressing this issue, the New York State Bar Association recently observed that accessing and viewing publicly posted information on social networks like Facebook or MySpace is comparable to obtaining information from publicly accessible online or print media, or through a subscription research service, such as Nexis or Factiva. This, the opinion holds, "is plainly permitted."[3]
Private Pages on Social Networking Sites
The analysis changes with respect to the non-public profile pages that are available only to people to whom the account owner has granted access, such as "friends" on Facebook...
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