The extraordinary difficulties facing lawyers seeking to fulfill their obligations to protect and preserve client confidentiality in the 21st Century were discussed in the Nov. 5, 2010, article in this column, “Protecting Client Information.” The present article focuses on other challenges to the old ethical order that are presented by the existence, and portability, of digital information. First, this article will explore what (if any) limits the ethics rules establish with regard to mining information on the Internet generally, and social network sites in particular. Second, the article will address the problem of who “owns” digitally stored information—clients, lawyers individually, or law firms—with special reference to the problems that arise when lawyers make lateral moves between firms.

Limits on ‘Mining’

Two recent bar association opinions in New York address the question of what limits the New York Rules of Professional Conduct place on the freedom of lawyers to conduct searches on the Internet generally, and social network sites in particular. In Formal Opinion 843 (Sept. 10, 2010) of the Committee on Professional Ethics of the New York State Bar Association (“NYSBA 843″), the digest summarizes the opinion thus: “A lawyer representing a client in pending litigation may access the public pages of another party’s social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]