ABSTRACT: Representing a client in a matter funded in whole or in part through donation-based crowdfunding is not unethical per se. Lawyers are encouraged to exercise substantial caution when undertaking a crowdfunded matter, however, as ethical concerns
The Rules of Professional Conduct do not forbid use of social media to investigate a non-party witness. However, the lawyer must follow the same rules which would apply in other contexts, including the rules which impose duties of truthfulness, fairness, and respect for the rights of third parties. The lawyer must take care to understand both the value and the risk of using social media sites, as their ease of access on the internet is accompanied by a risk of unintended or misleading communications with the witness. The Committee notes a split of authority on the issue of whether a lawyer may send a social media request which discloses the lawyer’s name – but not the lawyer’s identity and role in pending litigation – to a witness who might not recognize the name and who might otherwise deny the request. The Committee finds that such a request is improper because it omits material information. The likely purpose is to deceive the witness into accepting the request and providing information which the witness would not provide if the full identity and role of the lawyer were known.
Although attorneys are required to maintain strict confidentiality of client information, attorneys are also required to be truthful to the tribunals in which they appear. As a result, there are occasions when attorneys must take steps to remediate statements made to the tribunal on behalf of a client or by a client regardless of potential harm to the client’s interests. If remediation is required, it must be done promptly.