Ethics opinions vary nationally in
their approach on two related questions.
Some, such as Kentucky (Ethics Opinion E-434 (2012)), Massachusetts (Ethics
Opinion 2014-5 (2014)), New Hampshire
(Advisory Opinion 2012-13/05 (2012)),
and Pennsylvania (2014-300 (2014)),
extend the prohibition on pretexting to
non-lawyers working on behalf of the
lawyer involved under state variants of
RPCs 5. 3, which deals with lawyer responsibility for non-lawyer assistants,
and 8. 4(a), which prohibits violating the
professional rules through the acts of
another person. Others, such as Oregon
(Formal Opinion 2013-189 (2013)), allow
lawyer supervision of otherwise lawful
covert investigations that use deception
if permitted by state variants of RPC 8. 4
(as in Oregon).
Some, such as the Philadelphia and
San Diego opinions noted above, reason
that a lawyer cannot even make a “friend
request” or the equivalent of a witness
using the lawyer’s own name without
disclosing the purpose of the request,
because to do otherwise would constitute
a misrepresentation by omission. Others,
such as New York City (Formal Opinion
2010-2 (2010)) and Oregon (Formal
Opinion 2013-189 (2013)) conclude that
a lawyer can use the lawyer’s own name,
reasoning that there is no inherent misrepresentation even if the purpose of the
request is not disclosed.
The same range of remedies is generally available for improper conduct with a
witness as noted earlier for “no contact”
rule violations — but with an important
twist. Misrepresentation in almost any
setting typically increases the potential
sanction because it touches on a core
value: a lawyer’s honesty.
RPC 3. 5(b) makes clear that a lawyer cannot communicate ex parte with either a
prospective or selected juror during trial
(unless otherwise permitted by a court
order). Comment 2 to RPC 3. 5 reinforces
the prohibition contained in the text of
the rule. Both the rule and comment are
patterned on the corresponding ABA
The ABA recently addressed Web-
based investigations of prospective
and selected jurors in Formal Opinion
466 (2014). Analyzing the identical
ABA Model Rule, the ABA concluded
that a lawyer — or a non-lawyer work-
ing for the lawyer — cannot contact a ju-
ror directly through electronic means.
Because Model Rule 3. 5(b) is framed
broadly, the ABA also reasoned that the
prohibition extends to access requests.
At the same time, the ABA found that
simply viewing a juror’s publicly avail-
able web or social media pages does not
violate the rule, because that does not
involve communication. The approach
taken by the ABA is consistent with the
Washington Supreme Court’s extended
discussion of prohibited “ex parte com-
munications” under RPC 3. 5 in State
v. Watson, 155 Wn.2d 574, 578-81, 122
P.3d 903 (2005).
Sanctions for improper contact with
a juror can range from regulatory discipline (see, e.g., In re McGrath, 178 Wn.2d
280, 298, 308 P.3d 615 (2013) (
disciplining lawyer for improper contact with
judge under RPC 3. 5(b)) to mistrial and
associated monetary penalties (see generally State v. Casey, 2012 WL 1392945
(Wn. App. Apr. 23, 2012) (unpublished)
(discussing mistrial as a remedy for improper contact with a juror)).
People today often paint with an ex-
tremely broad brush in their digital
self-portraits on the Internet and in so-
cial media. Independent investigation
can offer the significant advantage of
stealth over traditional discovery for
parties and witnesses or the equiva-
lent for prospective jurors in gather-
ing this information. At the same time,
there are distinct constraints to gath-
ering electronic information through
independent investigation and corre-
sponding sanctions for violating the
rules involved. Lawyers need to be
thoroughly familiar with those con-
straints so that the ultimate surprise
when revealing this information in
court won’t be on them. NWL
Mark Fucile of
Fucile & Reis-
ing LLP handles
privilege matters and law-firm-
related litigation for lawyers,
law firms, and legal departments
throughout the Northwest. He is
chair of the WSBA Committee on
Professional Ethics, a past mem-
ber of the Oregon State Bar’s Legal
Ethics Committee, and a member
of the Idaho State Bar Profes-
sionalism & Ethics Section. He can
be reached at 503-224-4895 and
Utter v. Bldg. Indus. Ass'n of Washington, __ Wn.2d __,
341 P.3d 953 ( 2015); City of Bellevue v. Pine Forest
Properties, Inc., 181 Wn.2d 802, 340 P.3d 938 (2014);
In re Estate of Hambleton, 181 Wn.2d 802, 335 P.3d 398
(2014); United Services Auto. Ass’n v. Speed, 179 Wn. App. 184
(2014); Walsh v. Reynolds, 183 Wn. App. 830, 335 P.3d 984
(2014); Miller v. Kenny, 180 Wn. App. 772 (2014); Fair v.
Powers & Therrien, 181 Wn.2d 117 (2014); Expedia, Inc. v.
Steadfast Insurance Co., 180 Wn.2d 1014 (2014); Holmquist v.
King County, 182 Wn. App. 200 (2014); LKO v. TCG, 168 Wn.
App. 862 (2012), aff’d 181 Wn.2d 48 (2014); Tamosaitis v.
Bechtel National, Inc., 182 Wn. App. 241 (2014); Marriage of
Valente, 179 Wn. App. 817 (2014); Dellen Wood Prod., Inc. v.
Dept. of Labor and Indus., 179 Wn. App. 601 (2014); Marriage
of Wright, 179 Wn. App. 250 (2014); Camicia v. Howard S.
Wright Const. Co., 179 Wn.2d 684 (2014); Anderson
v. Dussault, 177 Wn. App. 79, rev’d 181 Wn.2d 360 (2014).