Ethics Committee Advisory Opinion #2012-13/05
By the NHBA Ethics Committee
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.
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
This opinion was submitted for publication by the NHBA Board of Governors at its June 20, 2013 meeting.