The ABA has issued a formal ethics opinion that provides guidance to lawyers whose clients use an employer’s email account to send or receive email from counsel.  In Formal Opinion 11-459, the Standing Committee on Ethics and Professional Responsibility urges lawyers to warn their clients that the confidentiality of electronic communications may be jeopardized if the employer or other third party, such as a hotel or library, has the potential to access email or other correspondence hosted on the third party’s computer system.

When clients use an employer’s computer, smartphone or other telecommunications device, or an employer’s email account, the employer may be able to obtain access to the communications and take advantage of that opportunity in various contexts, such as when the client is engaged in an employment dispute or when the employer is responding to a subpoena or document discovery in litigation.

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In a recent decision, a Pennsylvania trial court concluded that no privilege exists to prevent access to non-public social website information of personal injury claimants. Rather, the “paramount ideal” of pursuing truth favors liberal discovery of relevant information on social media sites.

In Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland Cty., May 19, 2011), the court rejected a personal injury plaintiff’s objections to providing non-public portions of plaintiff’s Facebook and MySpace pages, after the defendant demonstrated that the public portions of those pages included recent photographs and comments that appeared to contradict the plaintiff’s claims of physical and emotional distress. The court agreed with the rationale stated in other recent cases holding that an individual who voluntarily posts photos and information on social networking sites does so with the intention of sharing, and thus cannot later claim any expectation of privacy. The court noted that the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user’s own risk.

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Just as lawyers now routinely conduct due diligence on opposing parties’ social media pages. some lawyers also are monitoring postings by jurors on social media sites.

In a recent ethics opinion issued by the New York County Lawyers’ Association Committee on Professional Ethics (No. 743, 5/18/11), the committee concluded that an attorney may review jurors’ postings on publicly available social networking sites during trial. But they must not “friend” or “tweet” jurors, subscribe to their Twitter accounts, or otherwise contact them, either directly or through others.

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It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes. The posts and photos may show a party to be lying about the extent of his or her claimed injury or disability, or they could undermine or support other claims. Facebook and other social media sites also have become fertile ground for cutting edge ethical questions posed to state Bar ethics committees.

In a recent ethics opinion issued by the San Diego County Bar Association, a lawyer asked if it was proper to “friend” request high-ranking employees of a company the lawyer was suing on behalf of a former employee pursuing a wrongful discharge case. The lawyer believed that these high-ranking employees were dissatisfied with the company and likely had been posting negative information on their social media pages that were accessible only to those persons who had been accepted as “friends”.

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