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Legally Obtaining Evidence from Facebook in a Divorce/Custody Proceeding

The Law Office of Bryan L. Salamone & Associates, P.C. handles almost one thousand divorce cases each year. They are arguably the largest contested and high-conflict divorce law firm on Long Island, New York. In the last two years, the Law Office of Bryan L. Salamone & Associates, P.C. has handled scores of cases involving “Facebook” evidence.

The settings of Facebook can prevent the “public” from seeing anything in the account holder’s “wall,” including photos and changes in status. The only way to observe these is to “friend” the Facebook account holder. Accordingly, if representing a man in a custody matter and he believes that his wife has incriminating evidence on her Facebook wall, the question begs: How does someone become her friend and gain access to that wall? The answer is simple: friend request.

Although the question and the answer are relatively simple, it is illegal for a lawyer to do this in most circumstances. People become friended when they are selling things; gaining publicity; or with ulterior motives. People impersonate themselves as others all the time on Facebook. Facebook has become known as “Fakebook” in several circles. Nevertheless, the Bar Association Ethics Committee has opined that an attorney may use their real name to send a friend request to the opposing party without disclosing the reason for making such a request. This follows for the attorney’s agent as well. Nevertheless, it is impermissible and improper for the attorney to assume a false identity to gain access to the opponent’s “friend page.”

In 2010, the American Bar Association found that fifty-six percent of the attorneys in private practice have a presence in online social networks. Only forty-three percent had such a presence in 2009. It is good practice for anyone involved in a divorce to refrain from commenting whatsoever on their own Facebook account, as they don’t know who is their real friend—or who will become their friend to obtain evidence.

Lawyers should not make false statements of material facts to gain advantages. The first Facebook cases were not divorce cases at all, but were personal injury cases where the injured plaintiffs posted photographs and shared information about what they were doing or thinking—often portraying themselves in photographs and statements as far less “disabled” or “injured” as they were portraying themselves to be in a personal injury case.

There is a certain “reasonable expectation of privacy” in email but with Facebook, no person would have such reasonable expectation of privacy even if they put their settings on “friends only” and hide information from the general public. No one knows who their real friend is during the time of divorce, and when counseling clients we strictly advise them to withdraw from the public eye and refrain from speaking about their divorce and/or their activities during divorce, as it may damage their case and/or relationship with their children.

ABOUT THE FIRM

Bryan L. Salamone & Associates, P.C. is one of the largest Long Island law firms that handles exclusively divorce and family law. Mr. Salamone has commented on changes in law and trends in the law on most television stations and in most major news periodicals in the State of New York. Mr. Salamone has represented numerous celebrities and public figures and his victories have been reported and followed.

Mr. Salamone personally attends consultations on a selected basis and his firm engages in high-conflict divorce trials as well as divorce mediation and uncontested divorce on a daily basis. For a free consultation, or to retain the firm of Bryan L. Salamone & Associates, P.C., please contact the firm directly at www.divorcelawyerlongisland.com.

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