APPLYING MODEL RULE 4.2 TO WEB 2.0: THE PROBLEM OF SOCIAL ...

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APPLYINGMODELRULE4.2TOWEB2.0: THEPROBLEMOFSOCIALNETWORKINGSITES * Y VETTE O STOLAZA AND R )CARDO P ELLAFONE

Cite as ͳͳ J.( )G( T EC( .L.ͷ͸ ȋʹͲͳͲȌ ). )ntroduction Model Rule of Professional Conduct Ͷ.ʹ ȋDzRule Ͷ.ʹdzȌ is the ͳ current version of the professionǯs Dzno‐contactdz rule. )t generally prohibits an attorney from communicating about the subject matter of a representation with a person that the attorney knows to be represented by another attorney in the ʹ matter. Although its application has historically been rather straightforward, recent developments in online communication ͵ have complicated matters. )n particular, the surge in popularity of dynamic, user‐driven websites that employ complex privacy mechanisms—websites such as Facebook.com ȋDzFacebookdzȌ and MySpace.com ȋDzMySpacedzȌ—presents a new challenge to courts and ethics committees seeking to interpret Rule Ͷ.ʹ: with millions of individuals now maintaining profiles on these, or similar, websites, how far can an attorney go in an effort to obtain *  Ms. Ostolaza is the co‐head of the Complex Commercial Litigation Practice Group of Weil, Gotshal & Manges LLP; Mr. Pellafone is an associate in that group. The authors thank Matthias Kleinsasser for his assistance in researching this article. ͳ.See Geoffrey C. (azard, Jr. & Dana Remus )rwin,TowardARevised4.2 NoǦContactRule, ͸Ͳ ( AST)NGS L.J. ͹ͻ͹, ͹ͻ͹‐ͺͲͲ ȋʹͲͲͻȌ ȋdiscussing the history of the Dzno‐contactdz rule and its current incarnation as Rule Ͷ.ʹȌ. ʹ.See M ODEL R ULES OF P ROF ǯ L C ONDUCT R.Ͷ.ʹ ȋʹͲͲ͹Ȍ ȋdetailing the restriction on attorney communication with a represented partyȌ. ͵.Seeinfra notes ͻ‐ͳͲ ȋdiscussing the evolution of websites into more dynamic formsȌ. Copyright © ʹͲͳͲ Journal of (igh Technology Law, Yvette Ostalaza, and Ricardo Pellafone. All Rights Reserved. )SSN ͳͷ͵͸‐͹ͻͺ͵.

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Ͷ information about a represented party from one of these sites? )n the past, authorities that have attempted to apply Rule Ͷ.ʹ to websites ȋand recently, public pages on social networking sitesȌ have done so by holding that they are the equivalent of a book or magazine article, reasoning that this online conduct ͷ should be judged by the same rule as its offline counterpart. And initially, this approach made sense; the first wave of online content generation and communication was largely static and ͸ inherently public in nature, such that the creation of a personal website was at least roughly analogous to the offline publication ͹ of materials. Ͷ.See M ODEL R ULES OF P ROF ǯ L C ONDUCT R.Ͷ.ʹ cmt. ͷ ȋʹͲͲ͹Ȍ ȋusing an investigative agent as an example of legal communication that must nevertheless comply with Rule Ͷ.ʹȌ. Rule Ͷ.ʹ applies equally to an investigator acting at the direction of an attorney, but we exclusively use Dzattorneydz throughout this Article for two reasons.Seeid. This is important for brevity and because the type of investigative work discussed in Part ))) can be done by an attorney for no cost, within minutes, from any computer with an )nternet connection.Seeinfranote ͹Ͳ ȋusing Google cache as an example of the ease in finding a userǯs MySpace profileȌ. As a result, we predict it will be more likely for attorneys will simply attempt these online investigations themselves.See infra͸ͻ ȋdetailing an attorneyǯs use of MySpace in investigating note insurance fraudȌ. ͷ.See,e.g., Oregon State Bar Assǯn Bd. of Governors, Formal Op. ʹͲͲͷ‐ͳ͸Ͷ, Ͷͷʹ‐ͷ͵ ȋʹͲͲͷȌ [hereinafter ʹͲͲͷ Oregon Op.] ȋstating that electronic and nonelectronic forms of contact are indistinguishableȌ; Oregon State Bar Assǯn Bd. of Governors, Formal Op. ʹͲͲͳ‐ͳ͸Ͷ, ͳ‐ʹ ȋʹͲͲͳȌ ȋwithdrawn ʹͲͲͶȌ [hereinafter ʹͲͲͳ Oregon Op.] ȋnoting the similarity between viewing information on a passive website and reading a newspaperȌ. The ʹͲͲͷ Oregon Opinion states that Dz[f]or purposes of this opinion, there is no reason to distinguish between electronic or nonelectronic forms of contact. Both are permitted or both are prohibited. Accessing an adversaryǯs public website is no different from reading a magazine article or purchasing a book written by that adversary.dz ʹͲͲͷ Oregon Op., at Ͷͷ͵. The ʹͲͲͳ Oregon Opinion states that Dz[v]iewing ȋor even downloadingȌ information posted on a passive site is the equivalent of reading a newspaper, magazine, or other document available for public consumption. Following links to other websites is the equivalent of turning pages or locating other issues of the publication.dz ʹͲͲͳ Oregon Op., at ʹ.Seealso)nState Bar Assoc. Comm. on Prof. Ethics, Op. ͺͶ͵ ȋʹͲͳͲȌ.  N.Y. determining whether an attorney could view a represented litigantǯs public profiles ȋas defined hereinȌ on Facebook and MySpace, the New York Bar Association Committee on Professional Ethics reasoned that this was permissible because it was Dzsimilar to obtaining information that is available in publicly accessible online or print media.dz ͸.See Jonathan Strickland,IsThereaWeb1.0?, ( OW S TUFF W ORKS ,Aug. ͵Ͳ,

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ͺ But things have changed. The paradigm for )nternet usage today is no longer dominated by static, proprietary ͻ websites. )nstead, the second wave of web design—often ͳͲ referred to by the marketing term DzWeb ʹ.Ͳdz —is marked by ͳͳ collaborative content generation on user‐friendly platforms. Users do not have to know any coding language, understand FTP, or even invest the time to learn the interface of a simple web design tool; they simply have to input text into boxes, and their ͳʹ web presence is established. )n many cases, this takes the form of creating a profile on a ͳ͵ social networking site such as Facebook. The way that Facebook and other social networking sites have lowered the barriers to online publication dramatically impacts their ability to be compared to an offline publication; the way a user with minimal computer skills can quickly publish content on a social networking site bears little relation to the process of generating a static website during the DzWeb ͳ.Ͳdz era—let alone the process of ͳͶ publishing an offline book or article.

ʹͲͳͲ,archivedatȋidentifying first‐ http://www.webcitation.org/ͷsN()gwde wave web design as Dzstaticdz and not DzinteractivedzȌ. ͹.Seeinfranote ͳʹ ȋoutlining the limited nature of early social networking sitesȌ. ͺ.Seeinfranotes ͻ‐ͳͲ ȋcomparing the differences between DzWeb ͳ.Ͳdz and DzWeb ʹ.ͲdzȌ. ͻ.SeeD AVID W EINBERGER ,E VERYTHING I S M ISCELLANEOUS T HE P OWEROFTHE N EW D IGITAL D ISORDER (2007)(indicatingtheevolvingnatureofsocialnetworking sitesandtheInternetingeneral). ͳͲ.Seeid.the concept of DzWeb ʹ.ͲdzȌ; ȋintroducing seealso Tim OǯReilly, WhatisWeb2.0, OǯR E)LLY M ED)A ,Sept. ͵Ͳ, ʹͲͲͷ,archivedat http://www.webcitation.org/ͷsNbSbKvX ȋdiscussing Web ʹ.Ͳ as a conceptȌ. Although OǯReilly Media is credited with coining the term, sources vary on the exact identity of its progenitor.Seeid.;compare Dylan Tweney,TimO’Reilly: Web2.0IsAboutControllingData, W )RED , Apr. ͳ͵, ʹͲͲ͹,archivedat http://www.webcitation.org/ͷuOͶJVSRa ȋquoting Dz)tǯs not too late to get on the Ǯweb ʹ.Ͳǯ bandwagon, [sic] says publishing magnate Tim OǯReilly, who coined the term.dzȌ,withStrickland,supranote ͸ ȋcrediting DzDale Dougherty of OǯReilly Mediadz with coining the term DzWeb. ʹ.ͲdzȌ. ͳͳ.SeeOǯReilly,supranote ͳͲ ȋdiscussing the beneficial changes of the Web ʹ.Ͳ platformȌ. ͳʹ.SeeM. Boyd & Nicole B. Ellison, Danah SocialNetworkSites:Definition, History,andScholarship,ͳ͵ J. OF C OMPUTER ‐M ED)ATED C OMM . ͳ ȋʹͲͲ͹Ȍ,archived atȋreviewing the ease of creating a http://www.webcitation.org/ͷsubDikzL social networking profile for Web ʹ.Ͳ usersȌ. ͳ͵.SeeBoyd & Ellison,supranote ͳʹ ȋexplaining how a web presence is establishedȌ. Facebook is the second‐most popular website on the )nternet in