Is “Tagging” A Communication?

Louisiana Rule of Professional Conduct rule 4.2 prohibits lawyers from communicating with represented persons without authority either from the law, the court, or the represented person’s lawyer. Whether a lawyer’s conduct constituted a “communication” used to be very clear: a telephone call, a letter, or a face-to-face conversation obviously met the definition of a “communication.” Whether certain conduct is a “communication” becomes less clear in the age of technology and social media.

A Texas Court of Appeals recently considered whether “tagging” someone on Facebook was a communication with the tagged person for purposes of a restraining order.  See Boes v. State, No. 07-22-00204-CR (Tex. App. – Amarillo 2023). After Boes was arrested for assaulting his wife, the court issued a restraining order prohibiting the defendant from communicating in any manner with a person protected by the order. Thereafter, Boes posted on Facebook at least three times and tagged his wife. The court faced the issue of whether this conduct constituted a “communication” in violation of the order. *

Answering in the affirmative, the Court of Appeals reasoned “[T]agging” … create[es] a link to a particular Facebook friend who must be selected to receive notification of a tag…. The posts admitted into evidence demonstrate Appellant’s transmission or conveyance of information or a written message sufficient to constitute “communications.”  The court upheld Boes’ conviction for violating the protective order.

Although there is not clear guidance in Louisiana, it is very likely that a court faced with determining whether the action of “tagging” someone on Facebook constituted a “communication.” Like the restraining order at issue in Boes, Rule 4.2 provides that lawyers may not “communicate” with a represented person about the subject matter of the representation unless the lawyer has consent or is authorized to do so.

The Louisiana Rules of Professional Conduct do not define the term “communication.” Merriam-Webster Dictionary defines a communication as “a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior.” The critical component of a communication is the transmittal or interchange of information between the sender and the recipient.  

Rule 4.2 should not—and in my opinion does not—restrict an individual from simply talking about someone. Publishing a post about someone but not tagging the individual does not constitute a “communication.” There is no exchange of information. Nor is there any tickler or notice sent to the individual discussed in the post. Tagging, on the other hand, is a means of identifying someone else in a photo, tweet, or status update on social media. The tag informs the recipient that they have been “tagged” and lets the recipient know the sender was thinking of them.

The Rules of Professional Conduct are constantly being stretched and applied to new scenarios as technology continues to develop. Technology opens the door for many new forms of communication never before imagined. Whether the new technology constitutes a “communication” for purposes of the Rules of Professional Conduct likely will turn on the ability of the sender to alert or interact with the recipient when publishing the message. The passive statements—those which neither alert the individual or provide a platform on which to response—are unlikely to constitute “communications.”  

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