A recent Texas Ethics Opinion, Ethics Opinion 671, holds that lawyers may be subject to discipline for anonymously contacting third-parties for the limited purpose of obtaining identifying or jurisdictional information about that third-party.

Ethics Opinion 671 responds to an inquiry which asked the Ethics Committee to answer 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?

Under Rule 202 of the Texas Rules of Civil Procedure, 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 suit or to investigate a potential claim or suit.  Previously, attorneys could rely on Rule 202 to discover both jurisdictional and identifying information about otherwise anonymous individuals online.

In August 2014, however, the Supreme Court issued its opinion in In re Doe (Trooper), 444 S.W.3d 603 (Tex. 2014), holding that a Texas court cannot order a pre-suit deposition to identify an anonymous online defamer unless the petitioner shows that the individual has sufficient contacts with Texas for personal jurisdiction.  The Trooper decision created a conundrum—specifically, how can a lawyer establish jurisdictional facts about an anonymous individual like a cyber-stalker or an online defamer?

In an article published in the Texas Lawyer, High-Tech Tools for New World Problems, a former colleague and I wrote about this procedural challenge, noting that jurisdictional facts about an anonymous individual may be impossible to ascertain without interacting with that individual.  We suggested that technology might provide a work-around.  For example, use of pixel trackers or other data gathering tools normally used in digital marketing could result in the discovery of geolocation data sufficient to obtain a deposition pursuant to Rule 202.

Rather than precisely addressing the use of technology, Ethics Opinion 671 cautions lawyers, relying upon:

• Rules 4.01(a) and 8.04(a)(3) addressing a Texas lawyer’s duty to avoid making material misrepresentations to third parties and engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation; and
• Analogies to other states’ ethics opinions addressing the use social media for purposes of a case investigation by sending a “friend” request on Facebook¹.

By analogy, the Texas Ethics Committee extends the reasoning set forth in those other states’ opinions by concluding 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.”  Hence, lawyers may be subject to discipline under the Texas Rules if they, or their agents, anonymously contact an anonymous online individual in order to obtain jurisdictional or identifying information sufficient for obtaining a deposition pursuant to Rule 202.

¹i.e. N.H. Bar Ass’ n Ethics Committee Advisory Comm. Opinion 2012-13/ 05 (explaining that a request to “friend” must “inform the witness of the lawyer’s involvement in the disputed or litigated matter,” and provide disclosure of the “lawyer by name as a lawyer,” and the identification of “the client and the matter in litigation.”) and Ass’n of the Bar of the City of New York Prof’ Ethics Comm., Formal Opinion 2010-2 (2010) (opining that a lawyer shall not “friend” an unrepresented individual using “deception,” and that there is no deception when a lawyer uses his “real name and profile” to send a “friend” request to obtain information from an unrepresented person’s social media account.).