The Philadelphia and New York State Bar Associations' Social Media Research Ethics Opinions

INSTRUCTIONS: Read our article, "The Philadelphia and New York State Bar Associations' Social Media Research Ethics Opinions," as well as the two ethics opinions, cases, and articles referenced below - then answer all of the questions below to earn one hours of participatory MCLE credit.

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Notes:

For Questions 1 to 13, Read THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE Opinion 2009-02 (March 2009)
For Questions 14 to 20, Read New York State Committee On Professional Ethics Opinion 843 (9/10/10)

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The Philadelphia and New York State Bar Associations' Social Media Research Ethics Opinions

Question 1 Having Facebook and Myspace accounts permits a user like the witness in this opinion to create private pages which sometimes include highly personal information. Access to these private pages is limited to persons who obtain the user's permission:

True

False

Question 2 The inquiring lawyer proposes to ask a third person, whose name the witness will not recognize, to seek to "friend" the witness by contacting her via her Facebook and Myspace, to obtain access to the information on her private pages. There would be no ethical violation if the third person states only truthful information, for example, his or her true name, even if the third person does not reveal his/her affiliation with the lawyer or the true purpose for seeking access.:

True

False

Question 3 Rule 5.3 "Responsibilities Regarding Nonlawyer Assistants" states that even when the actual interaction with the witness would be undertaken by a third party who is not a lawyer, the inquiring lawyer is not insulated from ethical responsibility for the conduct.:

True

False

Question 4 If, as in this opinion's scenario, the inquiring lawyer asked another lawyer in his firm to contact the witness (without revealing the true purpose for seeking access), both the third party lawyer's conduct would violate the Rules AND the inquiring lawyer's conduct would violate the rules because the inquiring lawyer is responsible for the third party lawyer's conduct under Rule 5.1 (dealing with Responsibilities of Partners, Managers and Supervisory Lawyers).:

True

False

Question 5 Opinion 2009-02 states even if the witness allows virtually all would-be "friends" onto her FaceBook and MySpace pages and exposes herself to risks like that described in this opinion's scenario, excusing the inquiring lawyer's (or his agent's) deceit on that basis would still be improper. :

True

False

Question 6 The committee agrees with the inquiring lawyer that his proposed conduct is similar to the common practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents.:

True

False

Question 7 Opinion 2009-2 discusses the New York Lawyers' Association Committee on Professional Ethics Formal Opinion No. 737 (May, 2007) which approved the use of deception, but limited such use to investigation of civil rights or intellectual property rights violations. The authors of 2009-2 do not extend any exceptions to the "no deception" policy when it comes to the "friending" scenario described by the inquiring lawyer in this opinion. :

True

False

Question 8 In People v. Pautler, 47 P. 3d 1175 (CO 2002), the Colorado Supreme Court held that deception is allowed under limited circumstances.:

True

False

Question 9 The Colorado Supreme Court, in People v. Pautler, 47 P. 3d 1175 (CO 2002), stated that purposeful deception by an attorney licensed in the state is intolerable, even when undertaken as a part of attempting to secure the surrender of a murder suspect. :

True

False

Question 10 The Oregon Supreme Court in In Re Gatti, 8 P3d 966 (OR 2000), charged the accused lawyer with violating Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 7-102(A)(5) (knowingly making false statement of law or fact), and ORS 9.527(4) (willful deceit or misconduct in the legal profession). The court ruled that no deception at all is permissible, by a private or a government lawyer, even rejecting proposed carve-outs for government or civil rights investigations. :

True

False

Question 11 After Gatti was decided, Oregon's Rule 8.4 was changed and now provides that a lawyer may advise clients or others about lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights (or to supervise the investigation) if the lawyer's conduct is otherwise in compliance with these Rules of Professional Conduct.:

True

False

Question 12 Iowa has retained the old Rule 8.4, "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;" but adopted a comment interpreting the rule to permit the kind of exception now allowed by Oregon under its new Rule 8.4.:

True

False

Question 13 The Philadelphia Bar Association Guidance Committee Opinion 2009-02 is binding upon the Disciplinary Board of the Supreme Court of Pennsylvania.:

True

False

Question 14 The New York State Ethics Opinion 843 cites the Philadelphia Bar Association's Professional Guidance Committee Opinion 2009-02 and explains it differs from NY Opinion 843 because the Philadelphia Opinion is concerned with private profiles while the New York Opinion is concerned with public profiles.:

True

False

Question 15 Another key distinction between the scenario discussed in the Philadelphia opinion and NY Opinion 843 is that the Philadelphia opinion concerned an unrepresented witness, whereas the New York opinion concerns a party:

True

False

Question 16 A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace), but cannot use the information to impeach that party. :

True

False

Question 17 If a lawyer attempts to "friend" a represented party in a pending litigation, then the lawyer's conduct is governed by NY Rule 4.2 (the "no-contact" rule), but this rule does not even come into play in this NY Ethics Opinion because there is no "friending" involved when viewing a public profile.:

True

False

Question 18 A lawyer violates Rule 8.4 (prohibiting deceptive or misleading conduct) by conducting social networking research of public profiles (other than his/her own client's).:

True

False

Question 19 A lawyer who directs a nonlawyer to research a party (other than his/her own client) to try to find only their public social networking profile would probably not have violated Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction) if the nonlawyer learns that the party's profile is private and independently decides to use false statements to induce the party to "friend" the nonlawyer. :

True

False

Question 20 Obtaining information about a party through a subscription research service such as Nexis or Factiva is deceitful under New York's Rule 5.3(b)(1) because you are paying for the information.:

True

False

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The Philadelphia and New York State Bar Associations' Social Media Research Ethics Opinions

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