Ethics Committee Advisory Opinion #2012-13/05

By the NHBA Ethics Committee

ABSTRACT:

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.

ANNOTATIONS:

Merely viewing a Facebook’s user’s unrestricted Facebook page or following a Twitter user’s public feed is not a “communication” as contemplated by Rules 4.2 and 4.3, and is, therefore, permissible.

It is not permissible under Rules 4.1, 4.2, and 4.3 for a lawyer to ask a witness’s permission to view non-public, restricted social media information unless the witness is unrepresented and such request correctly identifies the lawyer and informs the witness of the lawyer’s involvement in the disputed or litigated matter.

It is not permissible under Rules 4.1, 4.2, 4.3, 5.3, and 8.4(a) for a lawyer’s investigator or other non-lawyer to send a Facebook friend request or ask an unrepresented witness’s permission to follow a restricted Twitter feed unless the non-lawyer assistant identifies the assistant, the lawyer, the client, and the cause in litigation.

Under Rule 4.1, a lawyer may not send a Facebook or Twitter request to access restricted information by using a false name or by logging into someone else’s account and pretending to be that person.

Under Rules 8.4(a) and 5.3, a lawyer may not direct a client to send a Facebook friend request or request to follow a restricted Twitter feed in order for the lawyer to view the information therein.

If the client has a Facebook or Twitter account that reasonably reveals the client’s identity to the witness, and the witness accepts the friend request or request to follow a restricted Twitter feed, no rule prohibits the client from sharing with the lawyer information gained by that means.

Deceit is improper, whether it is accomplished by providing information or by deliberately withholding it.  Rule 4.1

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This opinion was submitted for publication by the NHBA Board of Governors at its June 20, 2013 meeting.

SOURCES/AUTHORITIES

Opinions

New York City Bar Association, Formal Opinion 2012-2

New York City Bar Association, Formal Opinion 2010-2

New York State Bar Association, Opinion #843 (9/10/2010)

The Philadelphia Bar Association, Professional Guidance Committee, Opinion 2009-02, (March 2009)

San Diego County Bar Legal Ethics Committee, Legal Ethics Opinion 2011-2

Other Sources

McManus, “Friending” Adverse Witnesses: When Does It Cross The Line Into Unethical Conduct, Lexis Hub – Law, Technology, and Social Media (February 2011).

Lackey and Minta, Lawyers and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging, 28 Touro Law Review 149 (July 2012).

Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 Pace Law Review 228 (Winter 2011).

Cook and Tsao, Using Social Media As A Tool In Litigation: An Overview Of Evidentiary And Ethical Considerations, ABA Section of Labor and Employment Law, 6th Annual Labor and Employment Law Conference, October 31 – November 3, 2012.

ENDNOTES:

[1] In the remainder of this opinion, the Committee refers to this as a communication “in-name-only.”

[2] See, e.g., Thomas v. Kuhlman, 255 F. Supp. 2d 99, 107 (E.D.N.Y.2003); Williams v. Washington, 59 F.3d 673, 680-81 (7th Cir. 1995); People v. Donovan, 184 A.D.2d 654, 655 (N.Y. App. Div. 1992); see also American Bar Association Criminal Justice Standards, Defense Function §4-4.1.

[3] For the purposes of this opinion, an unrestricted page is a page which may be viewed without the owner’s authorization but which may require membership with the same social media service.

[4] “Facebook by the Numbers: 1.06 Billion Monthly Active Users,” available online.

[5] San Diego County Bar Legal Ethics Committee, Legal Ethics Opinion 2011-2; NY Bar Ethics Op. #843 (9/10/2010).

[6] San Diego County Bar Legal Ethics Committee, Legal Ethics Opinion 2011-2; Phil. Bar Assoc., Prof. Guidance Comm., Op. 2009-02.

[7] Pursuant to ABA Ethics Opinion 11-461, a lawyer may advise a client regarding the client’s right to communicate directly with the other party in the legal matter and assist the client in formulating the substance of any proposed communication, so long as the lawyer’s conduct falls short of overreaching. This opinion has engendered significant controversy because, according to some critics, it effectively allowed the lawyer to “script” conversations between the client and a represented opposing party and prepare documents for the client to deliver directly to the represented opponent. For a more complete discussion, see Podgers, On Second Thought: Changes Mulled Re ABA Opinion on Client Communications Issue, ABA Journal (Jan. 1, 2012), available online (last accessed May 22, 2013). The Committee takes no position on this issue and cites the opinion solely to illustrate the point that the client may independently obtain and share information with the lawyer, subject to certain constraints.

[8] In contrast to this opinion, the Philadelphia opinion does not find a violation of Rule 4.3.