Hello everyone and welcome to this Ethics Alert, which will discuss recent Texas Ethics Opinion 671 which states that lawyers, and their agents, may not anonymously contact an unnamed online alleged defamer in order to obtain jurisdictional or identifying information sufficient for obtaining a deposition pursuant to Rule 202, Texas Rules of Civil Procedure. The ethics opinion was issued in March 2018 and is here: https://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-671
The ethics opinion responds to an inquiry from a lawyer which asked the following question: “Whether an attorney or attorney’s agent may anonymously contact an anonymous online defamer in order to obtain jurisdictional information sufficient for obtaining a Rule 202 deposition”
The opinion states that under Texas Rules of Civil Procedure 202, a party may petition the court for an order authorizing the taking of a deposition to obtain the testimony of any person for use in an anticipated lawsuit or to investigate a potential claim or lawsuit. Lawyers had previously relied on Rule 202 to discover both jurisdictional and identifying information regarding otherwise anonymous individuals online.
In August 2014, the Texas Supreme Court issued an opinion holding that a Texas court could not order a pre-suit deposition to identify an anonymous online defamer unless the petitioner showed that the individual had sufficient contacts with Texas for personal jurisdiction. That decision raised the issue of how a lawyer could establish jurisdictional facts about an anonymous individual such as a cyber-stalker or an online defamer.
The opinion discusses the rules related to the lawyer’s duty not to make material misrepresentations to third parties and/or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation as well as other state ethics opinions which address the use social media to obtain information, such as sending a “friend” request on Facebook.
The opinion extends the rationale in those state opinions and concludes that:
“(I)t is the opinion of this Committee that the failure by attorneys and those acting as their agents to reveal their identities when engaging in online investigations, even for the limited purpose of obtaining identifying or jurisdictional information, can constitute misrepresentation, dishonesty, deceit, or the omission of a material fact. Accordingly, lawyers may be subject to discipline under the Rules if they, or their agents, anonymously contact an anonymous online individual in order to obtain jurisdictional or identifying information sufficient for obtaining a Rule 202 deposition. In order to comply with the Rules, attorneys, and agents of attorneys, must identify themselves and their role in the matter in question.”
The opinion does not address or discuss the use of technology to attempt to determine the location and name of the individual without direct contact.
Bottom line: As I have said (and blogged) in the past, the ethics opinions (and the Bar rules) prohibit using surreptitious means to contact an individual to conduct an investigation and attempt to gain information, such as sending an anonymous or disguised Facebook “friend” request. This Texas ethics opinion extends this analogy and states that lawyers (and their agents) are prohibited from anonymously contacting an unnamed online individual to obtain jurisdictional or identifying information sufficient for a deposition (and ultimately a lawsuit).
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670