Social Media in Litigation Part 1: Opposition Research

Social Media in Litigation Part 1: Opposition Research

Top 100 legal BlogsTexasBarToday_TopTen_Badge_VectorGraphicI remember learning that quantum physics theorizes that observing a situation or phenomenon necessarily changes it. I have no idea why, but that sounds cool.

This reminds me of an ethical question that comes up in almost every lawsuit: can a lawyer view an opposing party’s publicly available social media profile and posts?  The consensus answer is yes, if the lawyer merely views publicly available information without communicating with the opposing party.[1]

Without communicating with the opposing party. There’s the rub. How do you know when viewing the target’s social media will alert the target that you are doing the viewing?

You knew there was going to be a hypothetical

Let’s take my favorite fictional non-compete case, Paula Payne Windows v. Dawn Davis. Dawn Davis leaves her window sales job at Paula Payne and goes to work for a competitor, Real Cheap Windows. Paula Payne hires lawyer John Laurens from the litigation boutique Hamilton & Associates, and Laurens promptly files suit against Dawn Davis and Real Cheap.

Naturally, one of the first things Laurens wants to do in the lawsuit is some opposition research. He wants to know who Dawn Davis and Real Cheap are and what they’ve been doing lately.

The problem is that generally a lawyer is not allowed to communicate with an opposing party who is represented by counsel. (Let’s assume that Laurens knows that Dawn Davis and Real Cheap have hired a lawyer to handle their dispute with Paula Payne.)

There’s a minor complication for corporate parties. Questions arise about whether the rule against communicating with a represented party applies to employees of a company. It’s safe to say the prohibition applies to high-ranking executives. Whether the rule applies to lower-level employees is more debatable.

But let’s put that issue aside. My hypothetical assumes that Laurens is not allowed to communicate directly with Dawn Davis or Real Cheap.

It should be pretty obvious that Laurens can’t send a friend request to Dawn or Real Cheap, and certainly not on false pretenses. It should also be obvious that Laurens can’t get around this rule by having an assistant or third party do the dirty work for him.[2]

But it also seems obvious that lawyers are allowed to look at public information available on the Internet.

What can lawyers do?

So which of the following is Laurens allowed to do?

(A) Google “Dawn Davis” and “Real Cheap Windows” and see what pops up

(B) View every page of Real Cheap’s website

(C) Look at Dawn’s public profile on LinkedIn

(D) View Dawn’s Facebook posts that are publicly available

pexels-photo-194446
Can a lawyer view an opposing party’s profile?

Surely there is nothing wrong with (A), Googling the opposing party’s name to see what information is publicly available. Same with (B). Just looking at a company’s website is not communicating with the company, right?

Answer (C), looking at Dawn’s public profile on LinkedIn, also seems innocuous at first glance.

But most of you have probably noticed that LinkedIn offers a “Who’s Viewed Your Profile” feature. As of the time I’m writing this, LinkedIn says here that the Basic (free) account allows you to view information about who has viewed your profile recently, while the Premium account allows you to see the entire list of viewers from the past 90 days.

This complicates things. If Dawn Davis can see that Laurens has viewed her LinkedIn profile, then Laurens may have crossed the border into prohibited-communication land.

The same issue can arise with (D). At press time, I don’t believe Facebook makes it as easy as LinkedIn does to see who has viewed your public profile or posts. But I’m sure there are ways that savvy Facebook users can do this, perhaps with the use of third-party software. Those of you who keep up with this sort of thing, please weigh in.

In any case, the fact that I’m not really sure how Facebook functions on this point just illustrates the problem. And even if I knew exactly how it worked, it could easily change tomorrow.

Creepy or convenient?

To avoid these complexities, I propose this general ethical rule: a lawyer can observe publicly available social media content of an opposing party, as long as the lawyer does not communicate with or harass the party through the social media platform, even if the party becomes aware of what the lawyer did.

I would analogize to a lawyer driving by an opposing party’s house.

Yes, millennials (everybody loves picking on millennials), there was a time before social media when litigators would drive by an opposing party’s home to get a little intelligence. What kind of neighborhood does he live in? Is the house expensive? How many cars parked in the driveway? What kind of cars? Bumper stickers? Any boats? Even in a digital age, these little analog facts might tell you something useful.

I don’t think anyone would argue that simply driving by an opposing party’s house is a prohibited communication–even if the party happens to look out the window and see the lawyer. Taking a quick look at someone’s recent social media posts—assuming they are publicly available—seems similar in principle.

Of course, there are also ethical limits on harassing people, and harassment is a little harder to define. Simply driving by someone’s house is one thing. What about slowly driving back and forth in front of their house ten times and staring at their kids playing in the front yard? At some point, observation can cross the line into harassment.

chain
Is LinkedIn out of bounds?

I think the same holds true for social media. At some point, a lawyer’s surveillance of publicly available social media content could become obtrusive to the point of being creepy. And it’s a more sensitive issue if we’re talking about investigating members of a jury pool, a distinct issue I will address in a later post.

But in general, I don’t think the mere fact that a party to litigation becomes aware that he is being observed by an opposing lawyer means that the observing is a prohibited communication with a party represented by counsel.

Where do we draw the line?

This view is not universal. I have seen the position that a lawyer cannot view an opposing party’s social media content if the observed person can see that the lawyer has done so. But if you’re going to take that position, where does it stop, where do we draw the line?

Remember Answer (B) about viewing a company’s website? We all agreed that was ok, right? Well I’m willing to bet that many companies have some sophisticated ways of determining who has viewed their website. Does that mean we’re going to say websites are off limits?

It seems too burdensome to place the burden on the lawyer to determine what kind of digital footprint she’s going to leave each time she views something that is publicly available on the Internet.

Technology changes. Social media sites constantly update their features and terms of use. People alter the settings on their social media accounts. This makes it impracticable to lay down fixed rules for lawyers like “you can view a public Facebook profile, but not a public LinkedIn profile.”

So if it were up to me, I would not prohibit John Laurens from viewing Dawn Davis’s public social media account just because Dawn might become aware she’s being watched. Let’s leave the “observer effect” to quantum physics. Whatever that is.

*UPDATE: In its December 1, 2017 memo, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee noted, but did not analyze this issue: “May attorneys ethically investigate the ESM of other parties or witnesses?”

___________________________________________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. So far, he has been too cheap to upgrade to a premium account on LinkedIn. 

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] See Oregon State Bar, Formal Opinion No. 2013-189 (2013) (lawyer may access publicly available information on a social networking website); San Diego County Bar, Legal Ethics Committee, Opinion 2011-2 (2011) (“Nothing blocks an attorney from accessing a represented party’s public Facebook page,” but the attorney may not make an ex parte friend request of a represented party); New York State Bar Association, Committee on Professional Ethics, Opinion 843 (2010) (lawyer may view the public Facebook or MySpace (!) pages of opposing party in litigation so long as the lawyer does not “friend” the other party or direct a third person to do so).

[2] I would have thought these were no-brainers, but there have been ethics opinions seriously grappling with these issues.  See the San Diego and Oregon bar opinions cited above.

Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media

Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media

Editor’s Note: since this original post, the Texas Committee on Disciplinary Rules and Referenda has proposed changes to Disciplinary Rules of Professional Conduct 7.01-7.06. See our new post Proposed Changes to Texas Ethics Rules Threaten to Impose Clarity on Lawyer Use of Social Media. These changes would impact some of the analysis below, but in general following these tips is still a good idea. 

Complying With the Ethics Rules for Texas Lawyers Can Actually Make Your Social Media Content More Effective

This week’s challenge: give Texas lawyers the key tips they need to use social media without violating ethics rules, while also giving non-lawyers tips on more effective use of social media for professional networking and business development.  My hypothesis is that complying with the ethics rules for Texas lawyers can actually make your use of social media more effective, whether you are a Texas lawyer, a non-Texas lawyer, or not a lawyer at all.

First a little background. If you follow me on LinkedIn or Twitter (see photos below), you know that last week I hit the road to Dallas to present “It’s Not Just for Millennials – How to Incorporate Social Media into Your Business Development Efforts Without Violating Ethics Rules.” I often speak to Texas lawyers about how to use social media in a way that complies with the advertising rules in the Texas Disciplinary Rules of Professional Conduct.

starbucks

I typically tell Texas lawyers there is good news and bad news for lawyers who use social media. The bad news is that the Texas ethics rules are both unclear and potentially onerous when applied to social media, the worst of both worlds. But the good news is that the Texas State Bar has issued interpretive comments that use some common sense to apply the poorly written ethics rules to social media. If you like details and need to be shown the backup, you can read the applicable rules, interpretive comments, and some brilliant commentary here.

But if you just want the bottom line, keep reading.

Tip #1: Use your social media posts to educate and inform your target audience, not to make a sales pitch

The Problem with the Texas Ethics Rules: They generally require all advertising to be filed with the State Bar’s Advertising Review Committee.  Promoting your experience or qualifications in a social media post that is available to the general public is advertising. But filing every tweet, status update, or post with the State Bar would be a huge pain.

Take for example Peggy Schuyler, a transactional lawyer who focuses her practice on handling commercial real estate deals. She could post “I’m proud to announce I’ve been named a 2016 Texas Legion of Justice Super Friend in Commercial Real Estate Law.” There’s nothing unethical about that, but it would be advertising that she would need to file.

Help from the Texas State Bar: Social media content that is “educational or informational” is generally not advertising.

[The new proposed rules would not expressly include this “educational or informational” guidance, but they should.]

bucees

Why This is Actually Good for Lawyers and Other Professionals:   It’s usually more effective to show people your expertise than to tell people how great you are. Take Peggy, for example. Telling people about an award she won is probably better than nothing, but many firms post announcements like this, and they sound like advertising. Instead, what if Peggy posted a link to an article about the year’s top 10 commercial real estate transactions in her city? Her target audience will probably find that more interesting, and because it’s “educational or informational,” it’s not advertising.

Tip #2: Think about whether you really want or need the “call to action”

Lawyers can get “marketing” guidance from a wealth of literature from the world of sales. For example, my friend Drew Sanocki at Nerd Marketing is an e-commerce expert who knows all the hacks that can help online retailers increase their sales. Online marketing experts typically say your social media post needs to have a “call to action.” For example, they would tell Peggy to add, “Call me today if you or your client needs help with a commercial real estate transaction.”

The Problem with the Texas Ethics Rules: The “call to action” may be great sales advice, but it creates a problem for lawyers. When Peggy adds the call to action, she has just crossed the line into advertising. That means she needs to file her post with the State Bar.

[This issue would not change under the new proposed rules.]

Why This is Actually Good for Lawyers and Other Professionals: I feel like leaving out the call to action is good advice for lawyers and other professionals anyway. You’re selling professional expertise, not inexpensive razor refills. The call to action makes your post sound like just another sales pitch, and it doesn’t seem that necessary. People know they can hire you. In the history of the universe, has anyone ever read a lawyer’s social media post and thought, “I was thinking about hiring this guy, but he didn’t say he’s taking new clients, so I guess I’ll go somewhere else”?

Tip #3: Don’t overstate your role in good results obtained

The Problem with the Texas Ethics Rules: Taken literally, the rules prohibit a lawyer from stating a past success or “result obtained” if the lawyer was not lead counsel. So, for example, if I say in my social media profile that I “assisted” the trial team in the defense of a trademark infringement claim (which is absolutely true), the literal interpretation of the rule says this is a prohibited “misleading” statement, because I was not lead counsel.

[The new proposed rules would eliminate this problematic language and rely on the more general prohibition of false or misleading communications. This is a welcome improvement.]

ennis

Help from the Texas State Bar: The interpretive comment says you don’t have to be lead counsel as long as you don’t “claim responsibility” for the result obtained. So my statement about “assisting” the trial team is fine, because I’m not claiming responsibility for the result.

Why This is Actually Good for Lawyers and Other Professionals: Have you ever read a lawyer’s list of results obtained and thought, “wow, that’s a lot of accomplishments for such a young lawyer”? Do you sometimes think, “I wonder if this lawyer’s role in these cases was not quite what he’s making it out to be”? When a lawyer overstates his or her role in past successes, it has the opposite of the intended effect. So this is another case where following the ethics rules will actually improve the effectiveness of your content.

Tip #4: Don’t compare yourself with other professionals in your field

The Problem with the Texas Ethics Rules: None. In this case, the rule is fairly clear and not that onerous: don’t state comparisons with other lawyers that cannot be supported with objective, verifiable data. This means that most opinions comparing yourself to other lawyers are off limits. You can’t say things like “we’re the toughest lawyers in town” or “we’re the best law firm in Texas if you want a big recovery.”

[The new proposed rules would delete this specific prohibition, but they would still generally prohibit leading a reasonable person to reach a conclusion with no reasonable factual foundation.]

Why This is Actually Good for Lawyers and Other Professionals: Tooting your own horn in comparison with other professionals in your field is not the best use of social media. Like the “call to action” discussed above, it sounds too sales pitchy. It’s all about you instead of providing valuable information to your audience. And talking down other people who do what you do is not a good marketing strategy for professionals. As with overstating your role in successful cases, it doesn’t inspire confidence; it just makes you look insecure.

Tip #5: Leave the opinions out of your profile on LinkedIn and other social media

I’ve noticed that the slicker and more professional law firm websites—the ones that you guess expensive marketing consultants helped prepare—tend to have this kind of statement:

Zach Wolfe is a tough, aggressive litigator who fights hard for the best possible outcome for his clients. He is dedicated to thoroughly understanding the problems faced by his clients and crafting creative solutions. Zach’s clients value his uncanny knack for persuading juries in even the most difficult and complex cases . . .

Marketing gurus must think this kind of thing is effective. Notice the heavy use of subjective opinions that are virtually impossible to back up with data.

I’m not a fan of this. I may get some pushback here, but hear me out. Not only is your profile better when you stick to the facts, leaving out the self-serving opinions may also help you avoid making your profile an “advertisement” required to be filed with the State Bar.

basement

The Problem with the Texas Ethics Rules: Warning, this one is a downer. Do you have a profile on LinkedIn? Does it describe your experience and qualifications as a lawyer? Is it accessible to the public? Have you filed the profile with the State Bar?

If you’re a Texas lawyer, I’m willing to bet you answered yes, yes, yes, and no. I’ve only met one Texas lawyer who has filed his LinkedIn profile—or any other social media profile—with the State Bar.

This is a potential problem. If your social media profile is publicly accessible and describes your experience and qualifications, then technically it’s “advertising in the public media” that must be filed. “But no one does that!” you say. True, but good luck with the “everyone’s doing it” defense.

[The new proposed rules would help by exempting “a communication on a professional social media website to the extent that it contains only resume-type information.”]

Help from the Texas State Bar: Sorry, no official help. In fact, the interpretive comment states explicitly: “Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements.”

Why This is Actually Good for Lawyers and Other Professionals: For this one, it’s complicated. Texas lawyers have a range of unattractive options. You could take the ultra-cautious approach and change the settings on LinkedIn so your profile is only visible to your connections. But do you really want to hide your light under a bushel? Another option is to bite the bullet and file your profile with the State Bar, but that seems likely to open another can of worms.

On the other end of the spectrum, hakuna matata. You could just not worry about it, hoping that out of the thousands of Texas lawyers who have not filed their social media profiles, the State Bar won’t decide to make an example of you.

I tend to favor a middle ground: take the opinions out of your profile and focus on your basic contact information and practice areas. This kind of information is exempt from the filing requirement. This does not entirely solve the problem, because your profile will probably still have endorsements and recommendations, which don’t fall under any official exemption. But at least you have made a good faith effort to limit your profile to exempt information.

And your profile is better without the self-serving subjective opinions anyway, whether you are a lawyer or some other kind of professional.

Do you disagree? If so, I’d like to hear from you.

_____________________________________________________

IMG_4571

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.