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Danger: Legal Sharks Circle Online Posters

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For some reason, a lot of folks post all sorts of online information about themselves, their concerns about getting sued, and their ongoing lawsuits -- you name it, you can find it online. Sometimes the information is likely posted in a manner that will maintain the anonymity of the poster. However, more often than not, if you're diligent and determined, you may be able to piece together enough facts and dates to figure out who the poster is.

As a participant in a number of online forums where folks are often seeking help with potential legal problems involving brokerage firms (either as public customers seeking to sue or as industry folks concerned about same), I find myself cringing when I see the detailed background information that frequently finds its way into posts. As such, I often admonish posters to stop providing so much online detail and facts.

Recently, the Association of the Bar of the City of New York (ABCNY) posted an Ethics Opinion commenting on the developing issue of what lawyers may properly obtain from the Internet concerning clients or adversaries. The mining of online disclosures for lawyers' clients has become such a widespread practice that it now requires a bar association's opinion as to the ethicality of such efforts.

The ABCNY's Opinion is limited to the relatively narrow question of whether a lawyer, acting either alone or through an agent such as a private investigator, may resort to trickery via the Internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds. In particular, the ABCNY Opinion focuses on an attorney's direct or indirect use of affirmatively deceptive behavior to "friend" potential witnesses. Notwithstanding that somewhat narrow focus, the Opinion's mere existence underscores that more and more lawsuits are being impacted by online comments.

That should give you pause before your next online post.

Consider the following fictitious posting that I have set forth to make my point -- frankly, it's just not that different from many similar comments/questions that I regularly see anonymously posted. The critical issue is whether such an online presentation of information continues to preserve the poster's anonymity or, more to the point, does it serve to unlock a poorly barred door?

RE: Looking for legal help

I'm presently involved in a lawsuit with XYZ Corporation and wondering if anyone thinks that XYZ has a case against me?

I worked at XYZ Corp's 123 Main Street office in Little Town, NY and was there for three years until July 2010 when they fired me. Previously, I was a teacher at the Little Town High School but after my divorce in 2005 (my husband was the Principal of the LTHS), I joined XYZ Corporation.

I think it's sexual discrimination or maybe retaliation for threatened whistleblowing. XYZ says that I had another employee punch in for me. Can't I say that I never saw that policy? What if I had someone punch in for me but only once when I was getting a root canal? Hypothetically, if I took off early on two other occasions for my daughter's surgery but never took it as sick leave, could they go back about a year and make me pay for that? Will this jam me up if I file for unemployment compensation?

I urge you to read the ABCNY Opinion posted below not only to better understand what lawyers can do, but also to force an epiphany as to how dangerous your online chats and posted comments can be -- particularly if you're concerned about getting sued. Obviously, the simplest advice would be to seek out a qualified professional for a consultation rather than plumbing the depths of the Internet for freebie advice. There are lots of bad guys online who seem to delight in exposing hidden posters' identities or in providing dangerously wrong advice. Moreover, as the Opinion suggests, even exchanges on what you might see as the more private and friendly environs of "Facebook" versus a no-holds-barred Yahoo! forum, may not be as safe and secure as you think.

Yeah, I know, legal advice is often expensive -- frequently too expensive. Hey, it is what it is. You could always try to Google a local or state bar association's referral service for affordable legal counsel. Many associations will refer you to participating lawyers for either a free initial consultation or one that is frequently capped at, say, $50 or $100. There are also many organizations and law schools that provide legal clinics at no-charge or limited charge.

Nonetheless, just be careful about posting your legal problems online. You toss bloody chum in the waters, don't be surprised if the sharks start to circle.

Lawyers Obtaining Evidence from Social Networking Websites:
A New York City Bar Formal Ethics Opinion

http://www.nycbar.org/PressRoom/PressRelease/2010_0929.htm

Contact:

Eric Friedman
(212) 382-6754

Kathryn Inman
212-382-6656

New York , September 29, 2010 - Lawyers and their agents may not ethically resort to trickery on the Internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds, states a formal opinion from the New York City Bar Association's Committee on Professional Ethics (Formal Opinion 2010-2).

Because lawyers are increasingly searching sites like Facebook, Twitter and YouTube for evidence, "it is not difficult to envision a matrimonial matter in which allegations of infidelity may be substantiated in whole or part by postings on a Facebook wall," states the opinion. "Nor is it hard to imagine a copyright infringement case that turns largely on the postings of certain allegedly pirated videos on YouTube. The potential availability of helpful evidence on these internet-based sources makes them an attractive new weapon in a lawyer's arsenal of formal and informal discovery devices. The prevalence of these and other social networking websites, and the potential benefits of accessing them to obtain evidence, present ethical challenges for attorneys navigating these virtual worlds."

In particular, the opinion finds that " an attorney's direct or indirect use of affirmatively 'deceptive' behavior to 'friend' potential witnesses" crosses the line of ethical behavior under the New York Rules of Professional Conduct (the "Rules"). According to the opinion, "The applicable restrictions are found in Rules 4.1 and 8.4(c). The latter provides that '[a] lawyer or law firm shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' N.Y. Prof'l Conduct R. 8.4(c) (2010). And Rule 4.1 states that '[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.' Id. 4.1. We believe these Rules are violated whenever an attorney 'friends' an individual under false pretenses to obtain evidence from a social networking website."

The Committee noted that, consistent with the Court of Appeals' oft-cited policy in favor of informal discovery, an attorney or her agent may send a "friend request" using her real name and profile "to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request. While there are ethical boundaries to such 'friending,' in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements," states the opinion.

Part of the opinion's reasoning is based on the Committee's view that it may be "easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness's home, view the witness's photographs and video files, learn the witness's relationship status, religious views and date of birth, and review the witness's personal diary, the witness almost certainly would slam the door shut and perhaps even call the police. In contrast, in the 'virtual' world, the same stranger is more likely to be able to gain admission to an individual's personal webpage and have unfettered access to most, if not all, of the foregoing information."

The full opinion can be read here: http://bit.ly/aoSBWr