Know Your Bar Ethics of Social Media Privacy Limits when Investigating Opposing Parties.

The NJ State Supreme Court just recently dismissed charges against an attorney whose paralegal befriended an opposing Party on Facebook.  Note the Party's information was behind a virtual wall that the public could not see unless he befriended the user, in this case, the paralegal. The paralegal contacted the Party without revealing who his was boss at the time and charmed the plaintiff to friend him on Facebook. In doing so, the paralegal obtained potentially damning evidence about the Party. When the Party's attorney learned this during discovery, the attorney filed an ethics complaint against the paralegal's attorney.

The suspect-attorney had to explain to the ethics board how he did not violate the canon of not contacting an opposing party who is represented by counsel.  His defense was that this occurred in 2008: He just acquired a computer two years prior and did not understand the mechanics and nuances of Facebook at that time.  The NJ appeals court agreed: "What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute in 2008 when Facebook was in its infancy."

Today, his defense would likely not hold up before an ethics board.  Ethically unsound tactics are likely not immune to what you do on the internet.  Likewise, you should keep your personal information and activities walled off from prying eyes.  In either situation, watch what you do on the internet; it may land you a bar complaint.

MTC.