Since 2005, bar associations in a number of states have issued ethics opinions on the topic of attorneys using social media as an investigative tool. This article traces the history of these opinions and their impact on attorneys in New York. Of note is the fact that bar associations in New York have issued more opinions on this subject than those in any other state.
These opinions bring into play a number of the Rules of Professional Conduct, including New York's Rule 4.1 (Truthfulness in statements to others); Rule 4.2 (Communication with person represented by counsel); Rule 4.3 (Communicating with unrepresented persons); Rule 5.3 (Lawyer's responsibility for conduct of nonlawyers); and Rule 8.4 (Misconduct). (See 22 NYCRR 1200.0).
The first formal ethics opinion addressing the use of social media as an investigative tool was Oregon Formal Ethics Op. No. 2005-164 (August 2005), which held that an attorney may access the public website of a represented party even if it contained information relevant to the subject litigation. The bar analogized this "passive" review to the reading of a magazine article, noting that such action would not constitute an interactive communication thereby triggering the protections of Rule 4.2, since an attorney who reads information posted for the general public's consumption is not "communicating" with the represented owner of the website. The opinion did point out, however, that in the case of a website belonging to a represented party, an attorney could not email, chat, or post about the subject matter of the case because such activities would be interactive communications for purposes of Rule 4.2.
In March 2009, the Philadelphia Bar Association Professional Guidance Committee issued its Opinion 2009-2 which involved a Pennsylvania attorney who had deposed a non-party witness whose testimony was favorable to the opposing party. During the deposition, the witness disclosed that she had a Facebook page. The inquiring attorney thought that if he could review the witness' Facebook page he might find information that could be used to impeach her testimony at trial. Since the attorney thought the witness might not accept his "friend request," he considered asking someone whose name the witness would not recognize to try to "friend" the witness. This third person would state her real name, but not her affiliation with the attorney or the reason why access was being sought. The attorney asked whether this approach would be appropriate.
The Philadelphia Bar held that using a third party to friend a witness was deceptive and would violate Rule 8.4(c) which prohibits conduct involving "dishonesty, fraud, deceit, or misrepresentation," as well as Rule 4.1 (Truthfulness in Statements to Others) and Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants). The bar noted that the proposed conduct omitted the "highly material fact" that the friend request was only being made because the requester wanted to obtain information to share with an attorney for use in a lawsuit to impeach the witness' testimony. The bar added that deception was improper, even if the witness accepted almost everyone who sent her a friend request.
While not relied upon by the Philadelphia Bar in its opinion, Pennsylvania's Rule 4.1 contains language found in ABA Model Rule 4.1(b), which provides that a lawyer shall not knowingly "fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." This language is absent from New York's version of Rule 4.1.
For practitioners in New York, the Philadelphia Bar's opinion must be compared with New York City Bar Formal Opinion 2010-2 (September 2010). While that opinion concurred that an attorney may not use deception to access information from a social networking site, unlike the Philadelphia Bar, it concluded that an attorney or an investigator hired by the attorney, may, using their real name and profile, send a friend request in order to obtain information from an unrepresented person's social network site without disclosing the reason for the request.
That same month, the New York State Bar Association issued NYSBA Opinion 843, holding that an attorney representing a client in pending litigation may access the public pages of another party's social networking website for the purpose of obtaining possible impeachment material for use in the litigation. As long as the attorney did not friend the other party or direct a third person to do so, accessing the website of the party would not violate Rules 4.1, 8.4 or 5.3.
Opinion 843 noted that under the facts presented, the social media websites the attorney wished to view were accessible to all members of the network. Thus, "New York's Rule 8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the network). Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted. Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer's client in litigation as long as the party's profile is available to all members in the network and the lawyer neither 'friends' the other party nor directs someone else to do so."
The opinion explained that if an attorney attempts to friend a represented party in pending litigation, the conduct would be governed by Rule 4.2 which prohibits an attorney from communicating with a represented party about the subject of the representation absent the prior consent of the represented party's attorney. The opinion went on to explain that where an attorney attempts to friend an unrepresented party, the conduct would be evaluated under Rule 4.3, which prohibits an attorney from stating or implying that the attorney is disinterested, requires the attorney to correct any misunderstanding as to his or her role, and prohibits the attorney from giving legal advice other than to secure counsel if the other party's interests are likely to conflict with those of the attorney's client.1
Who Is a Party?
With regard to the question of who a "party" is, NYSBA Opinion 735 (2001) notes that the "term 'party' is generally interpreted broadly to include represented witnesses, potential witnesses and others with an interest or right at stake, although they are not nominal parties."
San Diego County Bar Legal Ethics Committee Legal Ethics Opinion 2011-2 (May 2011), which echoed the holding that an attorney is precluded from making an ex parte friend request of a represented party, went on to follow Philadelphia's more restrictive position and held that an attorney's duty not to deceive prohibited the making of a friend request to an unrepresented witnesses without disclosing the purpose of the request. "Represented parties shouldn't have 'friends' like that and no one—represented or not, party or non-party—should be misled into accepting such a friendship. In our view, this strikes the right balance between allowing unfettered access to what is public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously circumventing the privacy even of those who are unrepresented." The opinion pointed out that nothing precluded the attorney's client from personally making a friend request of an opposing party or a potential witness in the case; however, such a request presumably would be rejected by the recipient who knows the sender by name.
Closing the circle is Oregon Formal Opinion 2013-189 (February 2013), which reaffirmed its 2005 opinion that an attorney may access publicly available information on a social networking website regardless of that person's status and whether the individual is represented by counsel. The opinion went on to note that an attorney may request access to non-public information if the person is not represented by counsel in the underlying matter and no actual representation of disinterest is made by the attorney. On the latter point, the opinion stated that an attorney's request for access to non-public information does not in and of itself constitute a representation about the attorney's role so as to implicate Rule 4.3, stating "In the context of social networking websites, the holder of the account has full control over who views the information available on his or her pages. The holder of the account may allow access to his or her social network to the general public or may decide to place some, or all, of that information behind 'privacy settings,' which restrict who has access to that information. The account holder can accept or reject requests for access. Accordingly, the holder's failure to inquire further about the identity or purpose of unknown access requestors is not the equivalent of misunderstanding Lawyer's role in the matter. By contrast, if the holder of the account asks for additional information to identify Lawyer, or if Lawyer has some other reason to believe that the person misunderstands her role, Lawyer must provide the additional information or withdraw the request."
The Oregon Bar, consistent with all ethics opinions on the subject, held that an attorney, who has actual knowledge that the owner of the account is represented by counsel regarding the subject matter, is prohibited by Rule 4.2 from making a friend request without the consent of that person's counsel. The opinion also noted that an attorney may not direct or supervise the use of deception in obtaining access to nonpublic information (except in limited circumstances under Oregon's Rule 8.4(b), which are not relevant to the discussion here).
Under New York's Rules of Professional Conduct, it is appropriate for an attorney to access the public portion of a social media website, regardless of whether the owner of the site is a party or a non-party and regardless of whether that individual is represented by counsel. An attorney may not send a "friend" request to a represented party without the consent of the party's attorney, but the attorney or his or her investigator may, using their real name and profile, send a "friend request" to an unrepresented person without disclosing the reason for the request. If, however, the recipient of the request seeks the reason for the request, neither the attorney nor anyone on his or her behalf may provide a misleading or deceptive response.
Two subjects not addressed in this article are the accessing of a juror's social media websites by an attorney (see New York City Bar Formal Opinion 2012-2 and NYCLA Opinion 743), and a judge's use of social media (see New York Judicial Ethics Opinion 08-176 and ABA Formal Opinion 462).
Mark S. Ochs is of counsel at Tully Rinckey, in the Washington, D.C., office, and heads the firm's professional responsibility and legal ethics group.
1. While not addressed in these opinions, case law in New York holds that under CPLR 3101, where it is shown that information on a plaintiff's social networking accounts is material and necessary to the defense of a personal injury action, the plaintiff's right to privacy is outweighed by the defendant's need for the information. Romano v. Steelcase, 30 Misc.3d 426, 434 (Sup. Ct. Suffolk Cty 2010). The court, however, may conduct an in-camera review to determine which information appearing on the social media site, if any, are relevant to the alleged injuries. Richards v. Hertz, 100 A.D.3d 728 654 (2d Dept. 2012); Patterson v. Turner Constr., 88 A.D.3d 617 (1st Dept. 2011).