In late February, the Oregon State Bar Board of Governors approved OSB Formal Opinion No. 2013-189.  Following in the footsteps of opinions about metadata (187) and cloud computing (188), the bar seeks to address the ethical minefield of using social media to investigate an opposing party, a witness, or a juror.

The scenario is as follows:

Lawyer wishes to investigate an opposing party, a witness, or a juror by accessing the person’s social networking website. While viewing the publicly available information on the website, Lawyer learns that there is additional information that the person has kept from public view through privacy settings and that is available by submitting a request through the person’s website.

1. May Lawyer review a person’s publicly available information on a social networking website?
2. May Lawyer, or an agent on behalf of Lawyer, request access to a person’s non-public information?
3. May Lawyer, or an agent on behalf of Lawyer, use a computer username or other alias that does not identify Lawyer when requesting permission from the account holder to view non-public information?

Public Information is Up for Grabs

“Accessing the publicly available information on a person’s social networking website is not a “communication” prohibited by Oregon RPC 4.2. OSB Formal Opinion No. 2005-164 discusses the propriety of a lawyer accessing the public portions of an adversary’s website and concludes that doing so is not “communicating” with the site owner within the meaning of Oregon RPC 4.2. The Opinion compared accessing a website to reading a magazine article or purchasing a book written by an adversary. The same analysis applies to publicly available information on a person’s social networking web pages.”

Lawyers May Ethically “Friend” Non-Represented Parties

• A lawyer may request access to a person’s non-public personal information provided the lawyer has no actual knowledge that the person is represented on the subject matter by counsel. OSB Formal Opinion 2004-164.
• If the holder of the social networking account requests additional information to identify the lawyer, the lawyer must comply or withdraw the request.
• If the lawyer has reason to believe the holder of the social networking account misunderstands the lawyers role, the lawyer must provide additional information or withdraw the request.

Lawyers May Not Ethically “Friend” Represented Parties

If the holder of a social networking account is represented, the “friend” or contact request must be made through the account holder’s counsel or with the counsel’s prior consent.  Oregon RPC 4.2.

Contacting Jurors

“Although a lawyer may review a juror’s publicly available information on social networking websites, communication with jurors before, during, and after a proceeding is generally prohibited. Accordingly, a lawyer may not send a request to a juror to access non-public personal information on a social networking website, nor may a lawyer ask an agent do to do so.”

The Rationale Behind “Friending” Non-Represented Parties

The opinion includes an interesting discussion about the rationale for allowing lawyers to contact non-represented parties.

On the one hand, Oregon RPC 4.3 prohibits a lawyer from stating or implying that the lawyer is disinterested when making contact with an unrepresented party.  Further, if the lawyer knows or reasonably should know the unrepresented party misunderstand’s the lawyer’s role, he or she is obliged to correct that misunderstanding.  [See the second and third bullet points above, under Lawyers May Ethically “Friend” Non-Represented Parties.]

The opinion acknowledges that sending a request for contact means the “… lawyer is interested in the person’s social networking information.”  So how is it that contact is permitted under Oregon RPC 4.3?  Here is the explanation:

• A Lawyer’s request for access to non-public information does not in and of itself make a representation about the Lawyer’s role.
• The holder of the [social networking] account has full control over who views the information available on his or her pages.
• The account holder can accept or reject requests for access.
• The account 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.

Deceptive Access to Non-Public Information

The opinion also addresses the use of subterfuge to shield the lawyer’s identity when making a request for access to non-public information.  Aliases or “fake” usernames are generally not permitted in this context, unless the “covert activity” exception applies.  See Oregon Formal Opinion No. 2005-173 for a full discussion.

What this Opinion Does NOT Address

Formal Opinion No. 2013-189 addresses the ethical implications of using social networking sites for investigation.  It does not discuss the Stored Communications Act (SCA).  For a very brief overview of the implications of the SCA, see this post.  If in doubt, research the applicability of SCA issues before proceeding with social networking investigation activities.  If you practice employment law, be aware of Traps for the Unwary Employer (using social networking and related digital resources to screen potential employees).

All Rights Reserved 2013 Beverly Michaelis