Journal of American Law

SPRING 2015

The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.

Issue link: http://journaloflaw.epubxp.com/i/477043

Contents of this Issue

Navigation

Page 11 of 47

12 Journal of American Law // Spring 2015 companying message omits the critical fact that the individual seeking access to the pages is attempting to obtain informa- tion to share with a lawyer for use in litigation. If the witness were aware of the motive behind the request, it is unlikely that the witness would grant access. Te committee advised that it would be permissible for the attorney to ask for access if he disclosed the purpose of the request to the witness. Te San Diego County Bar Legal Ethics Committee is- sued an opinion stressing that an attorney may not send a friend request to a represented party. When a party is repre- sented in the matter at issue, the attorney is not allowed to attempt to elicit information about the subject matter of the representation regardless of the manner of communication. 18 An attorney cannot exploit a witness's lack of familiarity with the attorney's identity as a way to gain access to a social net- working website. Te Kentucky Bar cited the San Diego Bar's opinion in delivering similar guidance that attorneys cannot use social media to communicate with represented persons or imply disinterest in dealing with unrepresented persons. 19 Te Bar Association of the City of New York Commit- tee on Professional Ethics ofered a starkly diferent take. 20 Te committee considered whether a lawyer, acting alone or through a private investigator, could use deceptive methods to gain access to a secure social networking page. While dis- approving the use of a false identity, the committee concluded that an attorney or agent may use his or her real name to send a friend request to obtain information from an unrepresented person's social networking page without disclosing the reason for the request. Te committee decided the conduct was not unethical because the attorney or investigator used truthful information only to obtain access. Te opinion considered the peculiarity of interactions on the Internet in comparison to the real world. If an unfamiliar person came to your door and asked for permission to enter your home, browse family photo albums, and read your diary, you would shut the door and perhaps call the police. On the other hand, Internet users seem willing to allow total strang- ers to do just that. Te committee advised that individuals who allow unfamiliar persons to comb through their lives by granting access to private social media pages do so at their own peril. As long as attorneys or investigators do not misrepresent their identities, the committee saw no problem with friending unrepresented witnesses. Of course, sending a friend request to a represented party would violate the no-contact rule. Te Oregon State Bar Association arrived at a similar con- clusion. 21 Te Oregon State Bar took the stance that a lawyer may request access to nonpublic social media information if the target is unrepresented in that matter and the lawyer makes no actual representation of disinterest. Te opinion reasoned that a request for access does not create the implication that the 18 San Diego Cnty. Bar Ass'n Legal Ethics, Op. 2011-02; Model Rules of Prof'l Conduct R. 4.2 (2013). 19 Kentucky Bar Ass'n Ethics Op. KBA E-434 (2012). 20 N.Y. City Comm. on Prof 'l & Judicial Ethics, Formal Op. 2010-2. 21 Oregon State Bar Ass'n, Formal Op. 2013-189 (2013). lawyer is disinterested but, rather, that the lawyer is interested in the person's social networking information for an unidenti- fed purpose. Te Oregon State Bar cautioned that, under Ore- gon rules, if the attorney knows that an unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable eforts to correct the misunderstanding. How- ever, the account holder's failure to inquire further about the purpose of the friend request is not the equivalent of a misun- derstanding. If the target does ask for additional information to identify the lawyer or about the purpose of the request, then the lawyer must withdraw the request. Te New Hampshire Bar addressed these diferent ap- proaches to false friending. 22 Te New Hampshire Bar Ethics Committee acknowledged the New York City Bar's contention that it is not untruthful to make a request using one's genu- ine identity. However, the committee argued that the witness's predisposition to accept friend requests should not bear on the attorney's ethical obligations. Te fact that a witness is naïve does not mean there is no deception. If the lawyer sends a friend request using his genuine name with the knowledge that the recipient still may not recognize the name, the attor- ney has engaged in dishonesty. Te New Hampshire committee asserted that failing to include information that the sender is involved in the litigation creates the implication that the person making the request is disinterested. Te committee concluded that such an implica- tion would be a false statement of material fact, violating Rule 4.1. Te comment to Rule 4.1 states that misrepresentations include partially true but misleading statements or omissions that are the equivalent of afrmative false statements. 23 Te committee argued that the reason an attorney would make a friend request using only his or her name without disclosing a connection to the litigation is that the attorney hopes that the target will fail to appreciate the sender's role in the litigation and accept the request. If the lawyer disclosed the purpose of the request, the recipient would be much more likely to reject it. Terefore, the committee found that omitting the purpose of the request was deceptive and unethical. In light of the split of ethical authority, attorneys must be cautious when seeking social media evidence outside of dis- covery. It is not unethical to access and view content that is available to the general public. As Pennsylvania Bar Associ- ation Formal Opinion 2014-300 advised, this is true whether the social media account holder has representation or not. 24 Bar associations roundly condemn intentionally misrep- resenting one's identity in order to gain access to a private profle page. Attempting to access a private page using one's actual identity is a closer question. Some would put the bur- den of disclosure on the attorney, while others feel that the responsibility for screening requests from strangers falls on the account holders. All of the opinions agree that a request is allowed if the attorney discloses his true identity and the 22 New Hampshire Bar Ass'n Ethics Comm., Advisory Op. 2012- 13/05. 23 Model Rules of Prof'l Conduct R. 4.1 cmt. 1 (2013). 24 Pennsylvania Bar Ass'n, Formal Op. 2014-300.

Articles in this issue

Archives of this issue

view archives of Journal of American Law - SPRING 2015