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Monday, April 25, 2016

Be Careful in Seeking Private Facebook Information in Litigation

We've reported before about the many legal and ethical issues that arise with government social media use, including employee's "behaving badly" and the special rules that apply to government use of social media (FOIA, First Amendment, etc). Today's post deals with the ethical limitations placed on government lawyers.

Two lawyers were defending a governmental body in a personal injury case brought by a plaintiff who had been struck by a police car. The lawyers asked their paralegal to obtain information about the plaintiff on his social media sites. Because the plaintiff's Facebook page was "private," the paralegal sent a friend request to the plaintiff, but did not disclose that she worked for the law firm defending against the plaintiff's case. When the plaintiff learned his private Facebook information had been accessed, he filed a grievance with the state ethics commission. According to the ABA Journal, the New Jersey Supreme Court ruled that the ethics office could investigate the grievance to determine whether the lawyers engaged in unethical conduct.

There are a couple of lessons here. First, there doesn't seem to be any issue with using information that is publicly accessible (i.e., if the plaintiff had not set certain privacy settings on his Facebook page). However, lawyers should avoid seeking private information in any manner that could be seen as misleading. Second, lawyers should also make sure their employees understand and abide by the same ethical rules, because ultimately it will be the two government lawyers in this case that could be subject to discipline for their paralegal's actions.

You can read more about this case on the ABA Journal's website here.


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