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Council Actions

At its meeting on April 26, 2019, the State Bar Council adopted the ethics opinions summarized below:

2019 Formal Ethics Opinion 1
Lawyer as an Intermediary
Opinion rules that a lawyer may not jointly represent clients and prepare a separation agreement.

2019 Formal Ethics Opinion 2
Conditions Imposed on Lawyer by Client’s ERISA Plan
Opinion rules that a lawyer may not agree to terms in an ERISA plan agreement that usurp a client’s authority as to the representation.

2019 Formal Ethics Opinion 3
Engaging in Intimate Relationship with Opposing Counsel
Opinion rules that an ongoing sexual relationship between opposing counsel creates a conflict of interest in violation of Rule 1.7(a).

Rules, Procedure, Comments

All opinions of the Ethics Committee are predicated upon the North Carolina Rules of Professional Conduct. Any interested person or group may submit a written comment – including comments in support of or against the proposed opinion – or request to be heard concerning a proposed opinion. The Ethics Committee welcomes and encourages the submission of comments, and all comments are considered by the committee at the next quarterly meeting. Any comment or request should be directed to the Ethics Committee c/o Lanice Heidbrink at lheidbrink@ ncbar.gov no later than June 28, 2019.

Proposed 2018 Formal Ethics Opinion 5
Accessing Social Network Presence of Represented or Unrepresented Persons
April 25, 2019

Proposed opinion reviews a lawyer’s professional responsibilities when seeking access to a person’s profile, pages, and posts on a social network to investigate a client’s legal matter.

Introduction:

Social networks are internet-based communities that individuals use to communicate with each other and to view and exchange information, including photographs, digital recordings, and files. Examples of currently popular social networks include, but are not limited to, Facebook, Twitter, Instagram, and LinkedIn. On some forms of social media, such as Facebook, users create a profile page with personal information that other users may access online. Websites that host the social networks often allow the user to establish the level of privacy for the profile page and postings thereon, and to limit those who may view the profile page and postings to “friends”—those who have specifically sent a computerized request to view the profile page which the user has accepted. NYCBA Formal Op. 2010-2 (September 2010).

Lawyers increasingly access social networks to prepare or to investigate a client’s matter. However, the use of social networks has ethical implications. Several rules restrict a lawyer’s communications with people involved in a client’s matter. Rule 4.2 restricts a lawyer’s communications with persons represented by counsel. Rule 4.3 restricts a lawyer’s communications with unrepresented persons. Furthermore, all communications by a lawyer are subject to Rule 4.1’s prohibition on knowingly making a false statement of material fact or law to a third person and to Rule 8.4(c)’s prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.

The technology and features of social networks are constantly changing. It is impossible to address every aspect of a lawyer’s ethical obligation when utilizing a social network to prepare or to investigate a client’s legal matter. Every lawyer is required by the duty of competence to keep abreast of the benefits and risks associated with the technology relevant to the lawyer’s practice, including social networks. Rule 1.1, cmt. [8]. Further, when using a social network as an investigative tool, a lawyer’s professional conduct must be guided by the Rules of Professional Conduct.

This opinion will address ethical issues that arise when lawyers, either directly or indirectly, seek access to social network profiles, pages, and posts (collectively referred to as “social network presence”) belonging to another person. Throughout the opinion, “person” refers to opposing parties and to witnesses.

This opinion does not obviate comment [1] to Rule 8.4. The comment explains that the prohibition in Rule 8.4(a) against knowingly assisting another to violate the Rules of Professional Conduct or violating the Rules of Professional Conduct through the acts of another does not prohibit a lawyer from advising a client or, in the case of a government lawyer, investigatory personnel, of action the client, or such investigatory personnel, is lawfully entitled to take. See 2014 FEO 9 (use of tester in investigation that serves a public interest).

For guidance on communicating with a judge on a social network, see 2014 FEO 8. For the restrictions on communicating with a juror or a member of the jury venire, see Rule 3.5.

Inquiry #1:

Regardless of the privacy setting established by a user, some social network sites allow public access to certain limited user information. May a lawyer representing a client in a matter view the public portion of a person’s social network presence?

Opinion #1:

Yes. The public portion of a person’s social network presence refers to any information or posting that is viewable by anyone using the internet or anyone who is a member of the social network. Such information is no different than other information that is publicly available. Nothing in the Rules of Professional Conduct prohibits a lawyer from accessing publicly available information.

As noted by the Colorado Bar Association, “[a] lawyer’s conduct in viewing [the public portion of a person’s social media profile or any public posting made by an individual] does not implicate any of the restrictions upon communications between a lawyer and certain others involved in the legal system.” Colorado Formal Op. 127 (September 2015).

Some social networks automatically notify a person when his or her presence has been viewed. The person whose presence is viewed may receive information about the individual who viewed the presence. Under these circumstances, when a lawyer views a person’s public social network presence, it is the social network sending a communication, not the lawyer. Therefore, the notification generated by the social network is not a prohibited communication by the lawyer. See, e.g., ABA Formal Op. 466 (2014) (communication generated because of technical feature of electronic social media service is communication by the service, not the lawyer). However, a lawyer who engages in repetitive viewing of a person’s social network presence so as to generate multiple notifications from the network may be in violation of Rule 4.4(a). That rule prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.

Lawyers may view the public portion of a person’s social network presence. However, the lawyer may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a).

Inquiry #2:

May a lawyer use deception to access a restricted portion of a person’s social network presence?

Opinion #2:

No. Lawyers must never use deception, dishonesty, or pretext to gain access to a person’s restricted social network presence. Rules 4.1 and 8.4(c). When seeking access to a person’s restricted social network presence, a lawyer must not state or imply that he is someone other than who he is or that he is disinterested. Furthermore, lawyers may not instruct a third party to use deception.

Inquiry #3:

May a lawyer, using his true identity, request access to the restricted portions of an unrepresented person’s social network presence?

Opinion #3:

Yes. A lawyer’s duty of competent and diligent representation under Rules 1.1 and 1.3 encompasses the use of readily available forms of informal discovery. A lawyer who seeks informal discovery may request the same access to an unrepresented person’s social network presence that is available to any nonlawyer, as long as the lawyer uses his true identity and does not engage in deception or dishonesty. The person contacted is free to accept, reject, or ignore the request, or to ask for additional information. If the unrepresented person asks the lawyer for additional information, the lawyer must accurately provide the information or withdraw the request.

Rule 4.3(b) provides that a lawyer, in dealing on behalf of a client with a person who is not represented by counsel, shall not “state or imply that the lawyer is disinterested.” In addition, when the lawyer “knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”

By simply requesting access, the lawyer does not violate Rule 4.3. A lawyer who requests access is not making any statement, nor is he implying disinterest. See Oregon State Bar, Formal Opinion No. 2013-189 (2016 Revision) (“A simple request to access nonpublic information does not imply that Lawyer is ‘disinterested’ in the pending legal matter.”). The person contacted has full control over who views the information on her social network site. A grant of the lawyer’s request, without additional inquiry, does not indicate a misunderstanding of the lawyer’s role.

Inquiry #4:

May a lawyer, using his true identity, request access to the restricted portions of a represented person’s social network presence?

Opinion #4:

No. During the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or by court order. Rule 4.2(a). Rule 4.2 contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation. Rule 4.2, comment [1].

Unless the lawyer has obtained express consent from the represented person’s lawyer, the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation. Therefore, requesting access to the restricted portions of a represented person’s social network presence is prohibited unless the lawyer obtains consent from the person’s lawyer. Furthermore, the lawyer may not direct a third party to request access to restricted portions of a represented person’s social network presence. See Rule 8.4(a).

Inquiry #5:

May a lawyer request or accept information from a third party with access to restricted portions of a person’s social network presence?

Opinion #5:

Yes. Nothing in the Rules of Professional Conduct prevents a lawyer from engaging in lawful and ethical informal discovery such as communicating with third party witnesses to collect information and evidence to benefit a client. Witnesses who have obtained information from the restricted portions of a person’s (represented or unrepresented) social network presence are no different in this regard than any other witness with information relevant to a client’s matter. Therefore, when a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party. Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence.

However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site. See Opinion #2.

Proposed 2019 Formal Ethics Opinion 4
Ex Parte Communications with a Judge Regarding Scheduling or Administrative Matter
April 25, 2019

Proposed opinion rules that, except as prohibited by law or court rule, including rules of evidence and rules of procedure, communications with judicial official are within the discretion and preference of the tribunal and the presiding official.

Relying on previous versions of Rules 3.5 and 8.4 that prohibited ex parte communications with judicial officials and conduct prejudicial to the administration of justice, 98 FEO 13 expanded the prohibition on communications with judges to include certain “informal written communications” even if they did not fall within the definition of ex parte communications. The rationale for the expanded prohibition was that certain written communications with a judge “may be used as an opportunity to introduce new evidence, to argue the merits of the case, or to cast the opposing party or counsel in a bad light.”

Since the adoption of 98 FEO 13, several Rules underlying the opinion have been revised:

• Rule 1.0 has been amended to include a definition of “writing” or “written” that now encompasses email, text messages, and any other form of electronic communication.

• Rule 3.5 has been amended to simply state that ex parte communications with a judicial official are prohibited, unless authorized by law or court order. The revision also clearly defines an ex parte communication as “a communication on behalf of a party to a matter pending before a tribunal that occurs [1] in the absence of an opposing party, [2] without notice to that party, and [3] outside the record.” Rule 3.5(d).

• Comment [4] to Rule 8.4(d) has been amended to clarify the type of conduct that is “prejudicial to the administration of justice.”

Under these revised rules, ex parte communications continue to be generally prohibited, regardless of their form. In addition to the revised Rules, many such communications are also subject to restrictions established by law or court rule, including rules of evidence and rules of procedure. Pursuant to N.C. Gen. Stat. § 84-36, the Rules of Professional Conduct are not meant to disable or abridge “the inherent powers of the court to deal with its attorneys,” which include the manner in which attorneys communicate with the court. Therefore, regardless of form, and except as prohibited by law or court rule, including rules of evidence and rules of procedure, communications that do not fall within the definition of “ex parte communications” are within the discretion and preference of the tribunal and the presiding judicial official.

To the extent this opinion conflicts with 98 FEO 13, it is overruled. 

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