by Rebecca Clifford
The rising popularity of social media has created new discovery avenues for Internet savvy practitioners, and many lawyers now routinely review Facebook, LinkedIn, or MySpace profiles to gather information for use in litigation. But the world of social media also has created an ethical minefield for attorneys trying to keep up with new trends. While use of social media triggers many ethical issues, this article focuses on how the rules apply to “friending,” particularly in the context of adverse parties.
On May 24, 2011, the San Diego County Bar Association’s (“SDCBA”) Legal Ethics Committee (the “Committee”) provided some guidance for California attorneys who utilize social media research by releasing Legal Ethics Opinion 2011–2. The opinion addresses whether it is appropriate for an attorney to attempt to “friend” represented parties. Specifically, the Committee analyzed the following hypothetical: a lawyer who represents an individual in litigation against his former employer sent “friend” requests to high-ranking employees of the defendant in an effort to access disparaging comments about the employer posted on their social media pages. As discussed below, the Committee determined that such requests violate the prohibition against ex parte communications with represented parties, as well as the duty not to engage in deceptive conduct.
Ex Parte Communications
The Committee first addressed the applicability of California Rule of Professional Conduct 2–100, which provides that an attorney representing a client may not “communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” See Rule 2–100(A). For purposes of the Rule, a “party” includes officers, directors, and managing agents of a corporate party as well as certain employees, such as those whose statements may bind the corporation. See Rule 2–100(B).
The Committee found Rule 2–100 applicable because—under the holding in Snider v. Superior Court, 113 Cal.App.4th 1187 (2003)—the employees constituted “managing agents.” The Snider Court held that a “managing agent” is an employee who “exercise[s] substantial discretionary authority over decisions that determine organizational policy.” Id. at 1209, 1211. Applying this standard, the Committee reasoned that the employees’ “high-ranking” status likely allowed them to determine company policy (thus making them “managing agents”), or at least triggered a duty to inquire further before initiating communication. Although the Committee did not address “friend” requests to lower-level employees and, although such requests likely would not violate Rule 2–100 under Snider, they might violate other ethics rules.
The Committee next considered whether default “friend” requests—which merely state “[Name] wants to be friends with you on Facebook”—constitute communications “about the subject of representation” under Rule 2–100. The Committee applied the reasoning of U.S. v. Sierra Pacific Industries, 2010 WL 4778051 (E.D.Cal.), which held that counsel had violated Rule 2–100 where, while attending a government-sponsored field trip open to the public, counsel questioned government employees about topics related to pending litigation with the government, without disclosing that he sought the information for litigation purposes. The Sierra Court’s ruling was based primarily on the attorney’s motivation—he attempted to obtain information for use in litigation that should have been pursued through counsel and conventional discovery methods. Id. at *5. Thus, the Committee found that “the purpose of the attorney’s ex parte communication is at the heart of the offense.” Where the motivation is the “quest for information about the subject of the representation,” it is “about the subject of the representation,” no matter how innocuous it appears on its face. Under this standard, nearly all inquiries to represented parties performed by the opposing party’s attorney will constitute improper ex parte communication.
Based on the ABA Rules, case law, and opinions from fellow bar associations, the Committee also determined that a “friend” request—whether made to a represented or unrepresented party—violates the ethical duty not to deceive, unless it is coupled with a disclosure about why the request is being made.
According to ABA Model Rule 4.1(a): “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person . . . .” Similarly, ABA Model Rule 8.4(c) prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” California law also prohibits dishonest conduct. See Cal. Bus. & Prof. Code §§6106, 6128(A); Cal. Penal Code §528.5.
Two other bar associations recently addressed the issue of whether attorneys may ethically make “friend” requests. See Formal Opinion 2010–02 (New York) and Opinion 2009–02 (Philadelphia). The New York committee found “friend” requests permissible under New York’s policy of encouraging informal discovery, so long as the attorney or person seeking access uses his or her real name and profile to send the request, even if the reason is not disclosed. The Philadelphia committee took a more conservative approach, finding that a lawyer may not enlist a third person to “friend” the witness, obtain access to the restricted information, and turn it over to the attorney because it would violate the lawyer’s duty not to engage in dishonesty, fraud, deceit, or misrepresentation.
The SDCBA Committee took a similar approach to Philadelphia, determining that “even where an attorney may overcome other ethical objections to sending a friend request, the attorney should not send such a request to someone involved in the matter for which he has been retained without disclosing his affiliation and the purpose for the request.” Thus, California attorneys should refrain from sending generic “friend” requests and engage in full disclosure at all times.
Ethically navigating social media is not an easy task. When deciding how far to push the envelope, attorneys should avoid any ex parte communications intended to elicit information about the subject matter of the representation, no matter what words are used and no matter how the communication is transmitted. Attorneys also should make it a practice to disclose the purpose of their communications to avoid deception.
Rebecca Clifford practices at Irell & Manella’s Newport Beach office.