Oregon Issues Ethics Opinion on Accessing Information on Social Networking Website

Want to investigate an opposing party or witness online?

Want to ask to “friend” someone to access their non-public information on social networking websites like Facebook?

Want to use a computer username or other alias to hide your identity?

Oregon jumps into the discussion on whether and how lawyers may use information on social networking websites with a recently issued ethics opinion, OSB Formal Ethics Op No 2013-189. The opinion concludes:

1. A lawyer may access publicly available information on a social networking website.

2. A lawyer may request access to non-public information if the person is not represented by counsel in that matter (See RPC 4.2) and no actual representation of disinterest is made by the lawyer (See RPC 4.3).

3. A lawyer may not advise or supervise the use of deception in obtaining access to nonpublic information unless Oregon RPC 8.4(b) applies (our covert activity exception).

For more discussion, see the following ethics opinions: New York City Bar Formal Opinion 2010-2; New York State Bar Ethics Opinion 483; San Diego County Bar Association Ethics Opinion 2011-2; Philadelphia Bar Association Ethics Opinion 2009-02.

Update: North Carolina and Buying Another Lawyer’s Name

In my last post, I wrote:

Lately when I’ve been talking about lawyer advertising online, I have been using a hypothetical involving a lawyer who purchases another lawyer’s name for keyword searches on search engines like Google, Yahoo! and/or Bing (sometimes called AdWords). Up to now, there really hasn’t been much authority out there except for a proposed North Carolina opinion that says you can’t do it (that I can’t seem to find on its website).

My colleague (Calon Russell) has pointed out that the proposed North Carolina opinion is actually an adopted formal opinion. The opinion – 2010 Formal Ethics Opinion 14 (adopted on April 27, 2012) – indicates a lawyer cannot select another lawyer’s name as a keyword to use in a search engine’s advertising program (like AdWords). The Opinion concludes:

Yes. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.

I’ll keep an eye on this area but if anyone knows of other opinions, I would love to hear about them.

South Carolina Disapproves “Expert” Answering of Specific Online Legal Questions

In Ethics Advisory Opinion 12-03, the South Carolina Bar’s Ethics Advisory Committee addressed the question of the propriety of an attorney’s participation in answering online legal questions from the general public.

The opinion arises in the context of www.justanswer.com, a website which permits members of the public to post questions concerning a number of topics, for a fee, to be answered by preselected “experts” in various fields, including the legal profession.  As described by the Committee, members of the public posting the questions are not limited to residents of South Carolina.  The site’s terms of use notes that the site’s use of the term “experts” refers only to those who answer questions, and does not guarantee any particular level of expertise of those “experts.”   The attorney “expert” and the website enter an agreement providing that all “experts” in legal categories must be licensed attorneys in good standing in at least one jurisdiction, may provide only general information such as descriptions of general principles of law,  may not provide legal advice, and may not create an attorney client relationship on the site.  A lawyer who answers a question on the site is paid a fee by the website.

The Committee also noted that the site included a boilerplate initial response to posed questions stated “Hi, JustAnswer has asked me to answer your question…because it falls within my area of expertise.  I just need a few more details about your situation and I will get to work.”  It contains other statements such as “CUSTOMER SATISFACTION GUARANTEED”, “expert” and permitted some attorneys to have been verified to be credentialed as an  “VERIFIED EXPERT.”  Attorneys are identified initially through a user name and a photo.  Attorney profiles contain “feedback” that include testimonials and endorsements.  A “Recent Answers” section attributes specific legal advice given in response to detailed specific legal matters to specific attorneys.  The Committee noted only a small percentage of the answers was legal information of general applicability.

The Committee stated that only at the very bottom of the page, in smaller type than the substantive and promotional information is a disclaimer that the “answers” were not a substitute for legal advice, were provided “as is”, that the “expert” was not the questioner’s attorney, that the answer was not legal advice, that the information was not confidential or private or protected by the attorney client privilege, and that the questioner should consult with an attorney before acting.  A similar disclaimer of any provision of legal advise is also contained int the site’s terms of Service.

The Committee opined this scenario raised three ethics issues 1) advertising, 2) the creation of an attorney client relationship, and 3) third party compensation.

1) Advertising and Communication.

The Committee found the Site identified the attorneys as “experts” in violation of Rule 7.4(b), which prohibits  the use of the term “expert” (or a variation thereof), unless certain conditions, not triggered by the site, were met.  The site’s disclaimer of the meaning of the word “expert” did not absolve an attorney from the violation.  Further, the “as is” disclaimer could be construed as an attorney’s attempt to prospectively limit liability, in violation of Rule 7.1.  Finally, the testimonials and endorsements violated Rule 7.1 by not containing the required statements, and is misleading by using buried language to disclaim an attorney client relationship when the actual facts could result in the creation of one.

2) Creation of an Attorney Client Relationship

The Committee noted that it encouraged attorneys to participate in education and public relations programs about the law.  Citing its earlier Ethics Opinion 94-27,  the Committee approved an attorney’s participation in an online education and information program so long as no specific legal advice was provided.  Attorneys must refrain from appearing to give a general solution applicable to all similar situations, and must caution laymen not to attempt to solve individual programs on the basis of the information being provided.  The Committee cited with approval Opinion 94-13 from the Ohio Supreme Court Board of Commissioners on Grievances and Discipline, which noted that “particular caution is warranted” in formats that invite individuals to ask questions. A disclaimer of an attorney client relationship will not prevent the formation of an attorney client relationship if the parties’ subsequent conduct is inconsistent with the disclaimer.

Turning to the site in question, because it asked attorneys to provide specific legal advice in response to specific questions, it was substantively inviting the creation of an attorney client relationship despite the disclaimers.  “At a minimum, justanswer.com provides, not just question-and-answer, but a specific question-and-paid-professional-answer service,” which distinguished it from the public education program previously approved by the Committee.

3) Third Party Compensation

Finally, the site’s compensation structure violated Rule 1.8(f), which prohibits an attorney from receiving compensation from a third party unless the client gives informed consent, there is no interference with the attorney’s independent professional judgment, and the attorney client relationship, and the client’s confidential information is protected.  If the relationship between the attorney and questioner arises to the level of the creation of an attorney client relationship, the attorney cannot accept the fee unless she complies with Rule 1.8(f).

Opinion 12-03 expressly does not prohibit an attorney from participating in a legal website in general.  “Lawyers may participate in such sites only to the extent their participation (1) is limited to providing information of general applicability, and (2) the lawyer’s individual responses clearly advise against any reliance on the information as advice or application of it to a specific situation without a more thorough consultation with counsel. [citation].  When an inquirer attempts to explore specific circumstances with a participating lawyer, the lawyer should decline to respond beyond advising the inquirer to seek legal advice; otherwise, she risks creating an attorney-client relationship.”  The attorney must also ensure the website complies with the advertising and communication rules before using it.

The Committee concluded that generally that an attorney who elects to create an attorney client relationship through an online service, following the rules attendant to that relationship, would not violate the rules.  But on this site, they would.  The site specifically disclaimed the creation of an attorney client relationship.  An attorney who used it with the intent to create that attorney client relationship “would be tantamount to false, “bait and switch” advertising by the lawyer.”

Legal Ethics and Friending — NYC gets it right

I have previously voiced irritation with Philadelphia Bar Opinion 2009-02, which claimed it was unethical deception for a lawyer’s investigator (agent) to make a friend request to an unrepresented person if the investigator uses his or her real name.

This week New York City Bar Opinion 2010-2 reaches the opposite – and I believe strongly the correct – conclusion. NYC Bar Opinion 2010-2 states (and I agree): 

[W]e conclude 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.

Of course, a lawyer cannot use a ruse – or have an agent use a ruse – to gain access to a site:

We believe these Rules are violated whenever an attorney “friends” an individual under false pretenses to obtain evidence from a social networking website. . . . For purposes of this analysis, it does not matter whether the lawyer employs an agent, such as an investigator, to engage in the ruse.

Thus, true name okay, ruse name not okay. This seems pretty clear.

But my reading of Philly Opinion 2009-02 suggests they missed this point. Perhaps their concern was the one humorously raised but then overridden by the NYC Bar: 

[I]f a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness’s home, view the witness’s photographs and video files, learn the witness’s relationship status, religious views and date of birth, and review the witness’s personal diary, the witness almost certainly would slam the door shut and perhaps even call the police.In contrast, in the “virtual” world, the same stranger is more likely to be able to gain admission to an individual’s personal webpage and have unfettered access to most, if not all, of the foregoing information.

While this is true, and perhaps odd, I don’t think it should make a difference under the ethics rules. I hope that the Philadelphia Bar will rethink its earlier opinion.

The New York City Bar’s Opinion 2010-2 is at http://tinyurl.com/2336c34

The Philadelphia Bar Opinion 2009-02 is at http://tinyurl.com/cgwgwr

EQ Quick Hits Mid-Week

A few things to think about mid-week:

1. OK. We are all aware of the recession, and it has hit some more than others. But state judges in New York have n0t had a pay raise in 10 years. And now, the Commission on Judicial Conduct censured a judge from an upstate county for “openly declaring in mass e-mail messages to other judges that refusing to handle certain kinds of cases was ‘a tactic’ and ‘a weapon’ that could help pry a pay increase out of ‘those clowns’ in Albany.” The New York Times has the story on this interesting attempt at a pay raise here.
2. I recently heard from one of the commissioners for the Maryland Attorney Grievance Commission. He told me that their Bar Counsel of 31 years, Mel Hirshman, is retiring. Ergo, they are looking for someone new. Interested people can learn more here about the opening here. Or, if you just want to lean more about the Maryland Attorney Grievance Commission, you can go here.
3. That’s right. It’s only six days in the new year (including a holiday and a weekend), and we already have our first Facebook post! You can see the full story here at law.com, but it looks like a judge in Georgia (known as Bucky Woods) has retired after a 17-year career when it became public that he was in a Facebook relationship with a woman who was a defendant in a matter pending before his court. Seriously. Two obvious lessons here: (1) if you run across a party in litigation on Facebook, you should consider avoiding a relationship with that person (regardless whether you are a lawyer or the judge in the case); and (2) hire a lawyer right away. On this last point, consider the following passage from the article:

Woods said he didn’t want to discuss the e-mails, which he said were “obviously fake.” Upon further questioning, Woods said, “some were real and some were fake.” But he did not say which ones were fake.

Hmmm.

Facebook-ing – Do You Consider Judges Your Friends?

A few months ago, I posted a query regarding whether technology was creating reduced expectations of privacy. The post noted in passing that the Florida Board of Bar Examiners may want to look at your Facebook page.

Florida is again dealing with social networking sites, and the Judicial Ethics Committee has now opined in Opinion 2009-20 that, among other things, a judge may not add lawyers who appear before the judge as “friends” on a social networking site and may not allow lawyers to add the judge as their “friend”. The Opinion concludes:

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.

I’m still considering my position on this issue and I can definitely understand the logic behind the conclusion (and, in an article over at FindLaw, Anita Ramasastry argues that Florida’s ban on Judges’ “friending” lawyers on Facebook is the “right call”), but I am struggling with how far this analysis can reach. I doubt the Committee would want to argue that a judge couldn’t describe a lawyer who appeared in front of him as a “friend” in a social setting.

And there’s the rub. I may not Facebook but almost everyone I know does. And if that many people are using Facebook, isn’t there an argument that social networking is so ubiquitous that no one would understand a “friending” as something that conveys a special meaning? In other words, people who Facebook seem to be friends with almost anyone who asks to be a friend — so I’m not sure how that could convey an impression that those lawyer “friends” are in a special position to influence the judge.

As an example: I was at dinner the other night, and we began discussing Facebook with a nonlawyer. She told me that she had over “300 friends” on Facebook — some from high school, college, everywhere. Could one argue that being her Facebook friend really conveys a special position to influence her? Not the way she spoke about it.

And it’s notable that the Committee wasn’t unanimous either:

A minority of the committee would answer all the inquiring judge’s questions in the affirmative. The minority believes that the listing of lawyers who may appear before the judge as “friends” on a judge’s social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge. The minority concludes that social networking sites have become so ubiquitous that the term “friend” on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term “friend” on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a “friend” in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a “friend” on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2B.

Lastly, not sure how relevant this is to the post, but I just have to urge you to check out the social-networking hypothetical over at the Legal Ethics Forum, which deals with jurors wanting to date lawyers.

You can find the four questions posed by the Committee after the jump:

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