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motive. . . . [nor] does it require an intent to deceive or commit fraud.”
149
In contrast, another court has concluded that “[dishonesty] includes con-
duct evincing a lack of honesty, probity, or integrity in principle,” but
does not necessarily involve conduct legally characterized as fraud, de-
ceit, or misrepresentation.
150
At minimum, however, it appears that
courts finding a violation of Rule 8.4(c) generally require some sort of
culpable mental state, whether intent, purpose, or recklessness.
151
Regardless of whether there is a culpable mental state requirement
for Rule 8.4(c) violations, social media activities where the lawyer uses
her true identity and profile to connect with a research target do not vio-
late this rule. First, if the lawyer is able to gain access to the target’s
social media information using the lawyer’s identity, there is no need
(and no intent) to engage in affirmative dishonesty, deceit, fraud, or mis-
representation. Second, provided the lawyer takes no steps to hide her
interest in the particular matter and connection to the client, failing to
explicitly disclose this information when sending an automated request
for access or notification message similarly does not constitute dishon-
esty, deceit, fraud, or misrepresentation. This point is most directly sup-
ported by the Philadelphia and New York City bar opinions. The former
explicitly holds that although seeking access to social media information
through a third party is a violation of Rule 8.4(c), the lawyer could seek
such access herself, and that “would not be deceptive and would of
course be permissible.”
152
Further support of this interpretation is estab-
lished by the fact that all but one of the remaining bar opinions do not
even invoke Rule 8.4(c) as a justification for their constraints on social
media usage, indicating that they consider this rule inapplicable in this
scenario.
153
The San Diego Bar opinion alone concludes that failure to
disclose the lawyer’s interest in the matter constitutes a violation of Rule
8.4(c) because the “only way to gain access [to the target’s social media
information is] . . . for the attorney to exploit a party’s unfamiliarity with
the attorney’s identity and therefore his adversarial relationship with the
149
In re Obert, 89 P.3d 1173, 1177–78 (Or. 2004) (internal quotation marks omitted).
Several Oregon Supreme Court cases, including In re Obert, further note that misrepresenta-
tion can be “simply an omission of a fact that is knowing, false, and material in the sense that,
had it been disclosed, the omitted fact would or could have influenced significantly the deci-
sion-making process.” Id. at 1178, see also In re Eadie, 36 P.3d 468, 476, 333 Or. 42, 53 (Or.
2001); In re Gatti, 8 P.3d 966, 973, 330 Or. 517, 527–28 (Or. 2000). As far as can be deter-
mined, no other state embraces such a stringent standard for this rule—holding lawyers ac-
countable for omissions of material fact absent a duty (e.g., to a client) or any intention to
mislead.
150
In re Scanio, 919 A.2d 1137, 1143 (D.C. 2007) (internal quotation marks omitted).
151
See C
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, supra note 126, § 8.4(c), at
614 (collecting cases).
152
Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11.
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153
Compare N.Y.C. Bar Ass’n, supra note 23, and Phila. Bar Ass’n Prof’l Guidance
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Comm., supra note 11, with San Diego Cnty. Bar Legal Ethics Comm., supra note 1.
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