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Ethics evolving with technology

A recent ethics opinion from the Philadelphia Bar Association Professional Guidance Committee holds that a lawyer can’t use a third party to “friend” an adverse witness in an attempt to find possibly impeaching evidence on the witness’s Facebook page.
It appears to be a novel use for an online social networking site whose popularity has skyrocketed in the past few years.
While they had not heard of similar issues cropping up in Western New York, the co-chairmen of the Monroe County Bar Association’s Ethics Committee said they were not surprised by the Philadelphia opinion.
“You can’t do indirectly what you can’t do directly,” according to Christopher Werner of Boylan, Brown, Code, Vigdor & Wilson LLP, one of the co-chairmen.
New York, which recently adopted the American Bar Association’s Model Rules of Professional Conduct, uses the same ethical guidelines as Pennsylvania, he said.
In the Pennsylvania scenario, an attorney had asked for guidance as to whether he could have a third party contact an 18-year-old adverse witness on Facebook. He already had deposed the witness, who apparently accepted anyone’s request to be her friend, granting them access to her pages on Facebook and MySpace.
Taking advantage of her openness, however, would violate several ethical rules requiring truthfulness in statements to others.
It’s “an interesting use of dissemblance,” said James T. Townsend of Remington, Gifford, Williams & Colicchio LLP.
Townsend is the chairman of a local NYSBA program on ethics set for June 2, and said there are permissible situations for using dissemblance.
“Some opinions allow [it] when there’s an overarching public issue being pursued — housing discrimination, for instance,” Townsend said.
In exceptional cases, attorneys have been permitted to use investigators to determine whether landlords discriminated against minorities, for instance.
But Model Rule 8.4 also prohibits lawyers from engaging in conduct that involves misrepresentation, fraud or deceit.
If the Philadelphia lawyer went onto Facebook himself, and identified himself as an attorney, it might permissible, Townsend said.
In another case, however, an employee suing for wrongful termination was allowed to use e-mail and a personal blog on her Web site to publicize her side of the story.
In Bynog v. SL Green Realty Corp. (SDNY 2005), a disgruntled former employee blogged about her old boss and even posted her legal complaint online, Sharon P. Stiller, of Boylan, Brown, Code, Vigdor & Wilson LLP, said.
The plaintiff chronicled the events of her termination on her Web site, www.thatgreen, and e-mailed the company’s officers, directors and employees.
The federal court in Manhattan declined to issue a preliminary injunction against her posts, however, because the company did not prove the extraordinary circumstances necessary to trump Bynog’s right to free speech.
“With respect to what’s ethical for an employee to do or not to do, I think the courts have been reluctant to become involved in these things,” Stiller said.
But Stiller — also slated to speak at the upcoming NYSBA program, — cautioned that defamatory statements still are illegal, even online: “The fact that it’s on a Web site doesn’t make it different than elsewhere.”
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