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From the November 2010 Attorney E-Newsletter of The Disciplinary Board of the Supreme Court of Pennsylvania
Can a lawyer ethically get access to an opposing party’s Facebook page? We previously reported on a Philadelphia Bar Association opinion concluding that a lawyer may not, personally or through an agent, seek to “friend” an opposing party or witness without revealing.
But is there another way? A Pennsylvania Court of Common Pleas has held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.
A New York trial court decision reached the same result by a very similar analysis.
It becomes increasingly obvious that lawyers should be counseling their clients on the use of Internet social media. More than ever, there are few secrets on the Internet.
From the October 2010 Attorney E-Newsletter of The Disciplinary Board of the Supreme Court of Pennsylvania
The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has published Formal Opinion 10-457, which provides valuable guidance to lawyers and law firms who make use of websites in the public presentation of their practices. The opinion addresses content issues such as providing information about the firm or practice, publishing information about the law, and handling visitor inquiries. It also provides advice on warnings or cautionary statements intended to limit or clarify the practice’s obligations to visitors.
Some of the high points of the opinion’s coverage include:
- A website may offer biographical and professional information about the lawyers and practice, but such statements that are “communication about the lawyer or the lawyer’s services” are subject to the requirements of Rules 7.1, 8.4(c) (generally), and 4.1(a) (when representing clients).
- Information that identifies clients may be posted, but the clients should provide informed consent within the requirements of Rules 1.6 (current clients) and 1.9 (former clients).
- Lawyers and firms may address legal issues on the website. Such communications should be general information rather than specific advice. Qualifying statements may be necessary to make sure that such information is not construed as legal advice.
- Lawyers who respond to questions or inquiries from website visitors should be particularly aware of the provisions of Rule 1.18 regarding prospective clients. The opinion addresses this topic at length.
- Finally, warnings or cautionary statements on a lawyer’s website can be designed to and may effectively limit, condition, or disclaim a lawyer’s obligation to a website reader. The opinion makes a number of observations on assuring that such statements are effective.
The opinion’s coverage of these issues is much more detailed than this brief summary. Lawyers and law firms who publish websites would benefit from reviewing the opinion and checking their own sites along the lines it suggests.