In an ethics opinion issued last month, New Hampshire joined the growing list of states and cities whose bar association ethics committee has provided its lawyers with formal guidance on the ethics of using social media to search for evidence in pending litigation. Given the ubiquity of social media use today, some may contend that searching for social media evidence that may be available from the accounts of clients, opposing parties and third-party witnesses is part of a lawyer’s ethical duty to represent his or her client competently and diligently and to investigate the case. Using social media to collect evidence or investigate a case, however, may implicate additional ethical duties, including the duty to be honest in dealing with others. Consequently, an increasing number of bar association ethics committees are addressing the fact that their respective rules of professional conduct don’t offer express guidance on how to navigate the ethical issues that these new technologies present to lawyers. In addition to communications with third-party witnesses, recent ethics opinions address a host of other novel issues, such as the July 2013 New York County Lawyer’s Association’s Ethics Opinion advising lawyers on “how attorneys may advise clients concerning what may be posted or removed from social media websites.”
Here, the New Hampshire Bar Association’s Ethics Committee provided guidance on several ethical questions relating to lawyers’ use of social media to investigate a nonparty witness. Specifically, the Committee sought to clarify a split in authority regarding when a lawyer may extend a nonparty a social media, or “friend,” request using the lawyer’s name but omitting his or her role in pending litigation. The Committee found that “such a request is improper because it omits material information,” reasoning that the likely purpose of not disclosing that information “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.”
The Committee’s opinion addressed the hypothetical situation where a lawyer “discovers that a witness for the opposing party in the client’s upcoming trial has Facebook and Twitter accounts” but that the sought-after social media evidence is available only to those whom the witness accepts as a Facebook friend or Twitter follower. The Committee explained the many professional rules of conduct that are implicated by a lawyer’s social media use and went on to acknowledge the clash arising from a lawyer’s duties of competence and diligence, on the one hand, and a lawyer’s duties of truthfulness and fairness when dealing with others, on the other hand. In the context of social media use, the primary question underlying this clash concerns what actions in furtherance of a lawyer’s investigation constitute a “communication” under the Rules of Professional Conduct.
The Committee began by clarifying that neither viewing a Facebook page nor following a Twitter user are “communication[s]” under the Rules of Professional Conduct if those accounts are unrestricted or public. However, such actions may constitute communications if the social media accounts are not public, thereby triggering certain ethical obligations. The Committee explained: “If, however, a lawyer asks the witness’s permission to access the witness’s restricted social media information, the request must not only correctly identify the lawyer, but also inform the witness of the lawyer’s involvement in the disputed or litigated matter.” Specifically, “the request [must] identif[y] the lawyer by name as a lawyer and also identif[y] the client and the matter in litigation.” The Committee reasoned that “[t]his information serves to correct any reasonable misimpression the witness might have regarding the role of the lawyer.”
The Committee recognized that “[t]here is a split of authority on this issue” but dismissed “the counter-argument that a request in-name-only is not overtly deceptive since it uses the lawyer’s or agent’s real name and since counsel is not making an explicitly false statement.” Disclosing only the lawyer’s name, the Committee found, can only mean that “the lawyer hopes to deceive the witness.”
Although this brings New Hampshire in line with the Philadelphia Bar Association, (Phil. Bar Assoc., Prof. Guidance Comm., Op. 2009-02), and with the San Diego County Bar Association, (San Diego Cty. Bar Legal Ethics Op. 2011-2), New Hampshire concluded that its approach is in “conflict” with that of the Committee on Professional Ethics for the Bar Association of New York City. While New Hampshire requires the lawyer to disclose his or her “role” or “involvement” in the particular litigation, including the name of the client, to avoid misleading the social media user about the reason for the contact, New York City has concluded that “an attorney or her agent may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request,” (NY City Bar, Ethics Op. 2010-2). To be clear, however, New Hampshire does not require that a lawyer expressly disclose the reason for making a social media request. Therefore, arguably a lawyer could comply with both opinions without expressly disclosing the reasons for the communication as long as the lawyer discloses his or her “role” or “involvement” in the matter in a manner that does not mislead the social media user about the reason for the communication.
The Committee also found that a lawyer may not use a false name when sending a Facebook friend request or a request to follow a restricted Twitter account, and the lawyer may not direct the client to do so on his or her behalf. However, a client may share such restricted information with the lawyer if the client already has access to it and did not act as the lawyer’s agent in obtaining that access. Notably, “the lawyer must advise the client to avoid conduct on the lawyer’s behalf which would be a violation of the rules.” The Committee explained that, “[s]ubject to these limitations, however, 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.”
Notably, the Committee’s efforts to provide useful guidance to its lawyers failed to recognize the technical nuances and limitations involved with complying with its opinion. Specifically, Twitter does not allow a user sending a follower request to a restricted Twitter account—which is the conduct that the Committee defined as a “communication”—to accompany that request with a note making the required disclosures, as is allowed with a Facebook request or LinkedIn request. So, given Twitter’s limited functionality, to comply with the Committee’s opinion, the lawyer would have to convey the required information to the witness via the lawyer’s general account information, which is displayed to all who have access to it, not only to the witness receiving the message. For the non-Tweeters, this difference is akin to changing your public profile on your law firm’s website to convey a message to one person instead of merely sending that person a private email. This is because compliance arguably requires the lawyer, prior to making the request, to set his or her Twitter account “Name” to their full name, to identify the client and the pending litigation in the Twitter account’s 160-character “Bio” and to maintain those settings until such time as the request is accepted or denied. So, some may contend that the ethical guidance provided by these social media-specific opinions imposes an unreasonable burden on lawyers and does not adequately reflect the practical usability of certain social media platforms. Somewhat appropriately, the Committee acknowledged that “[a]s technology changes, it may be necessary to reexamine these conclusions and analyze new situations.”
As social media use continues to grow, lawyers need to be acutely informed of the ethical guidelines of their jurisdiction when searching for social media evidence and understand the obligations imposed on them prior to reaching out to unrepresented third-parties via social media. The trend in ethics opinions regarding interactive, investigative social media use appears to be toward requiring, at a minimum, disclosure of the lawyer’s real name and the lawyer’s involvement in the pending litigation. Consequently, when using social media to contact potential third-party witnesses, lawyers should take sensible steps to avoid “reasonable misimpression[s] the witness might have regarding the role of the lawyer.” Moreover, when doing so, lawyers should understand how to appropriately use the functionalities of the various social media technologies in order to comply with their ethical duties.