The New York State Bar Association says it's ethical for lawyers to scour Facebook and other social media websites to get dirt on the opposing side in lawsuits -- as long as the information can be found on the publicly available portions of the sites.
People do dumb things on Facebook -- and that's exactly why lawyers love it. Not only can you find embarrassing photos of people whose credibility will be at stake on the stand, you can catch them in an actual lie.
Jim Walker is a member of the state bar's Committee on Professional Ethics and helped draft the bar's new ethics opinion.
"People are less careful about the type of information that they post on a Facebook page," says Walker. "The thought is that, you know, it's personal, it's something that I share with my friends."
But when taken out of context, something can look really bad. Walker says, take for example the personal injury plaintiff who's claiming he can't walk but suddenly posts a photo of himself doing the limbo on the beach. Or an expert witness who posts jokes undercutting an expert opinion he just submitted in court. Facebook is a treasure trove of information -- one that can potentially yield more "gotcha" fruit than emails.
"Because it's not just words," says Walker. "It's also pictures, and there are all sorts of little things that you can have there that allow for more room for you to, frankly, hang yourself."
Lawyers should be able to use Facebook like any other public Web site, Walker says -- with a caveat: a lawyer can't deceptively "friend" another person -- or get someone else to "friend" that person -- just to gain access to information.