So you, as an attorney, want to be Facebook “friends” with an unrepresented party or witness? Well, what is your motivation? If you practice in California and want to use the private information in furtherance of your client’s case, think again because doing so may violate ethical rules and constitute engaging in “impermissible deception.”
On May 24, 2011, a committee of the San Diego County Bar Association (“Committee”) concluded that sending Facebook “Friend” requests to represented parties, such as high-ranking employees of a defendant-employer in a wrongful discharge matter, constitutes an ethical violation for two reasons. See SDCBA Legal Ethics Opinion 2011-2 (“Op. 2011-2”). First, such a request runs afoul of the California Rule of Professional Conduct that prohibits ex parte communications between an attorney and a represented party. Second, when an attorney communicates only his or her name and nothing more while attempting to access private information for purposes of advancing a client’s case, that conduct constitutes “impermissible deception.” See id. at 11-13.
The Committee explained that the fundamental inquiry is whether the Friend request to “the represented party is motivated by the quest for information ‘about the subject of the representation,’” and if so, then the Friend request is “‘about the subject matter of that representation,’” in violation of the ethical rules. Op. 2011-2 at 3 (citing to California Rule of Professional Conduct 2-100); see also ABA Model Rule 4.2 (same); New Jersey Rule of Professional Conduct 4.2 (same). Notably, in concluding that the motive was to seek information for use in the litigation, the Committee compared the Friend request in “the virtual world” to an attorney’s similar information request from the represented party in “the real world.” Id.
In rendering its decision, the Committee considered, but rejected, several “objections” to the prohibition:
First, the Committee rejected the argument that the Friend request was not “about the subject of the representation” because it did not refer to the relevant issues, reasoning that “the subject of the representation need not be directly referenced in the query for the query to be ‘about,’ or concerning, the subject of the representation.” Op. 2011-2 at 5.
Second, the Committee disagreed with the contention that seeking access to restricted information on a Facebook page (access to which requires the member’s permission) is the same as accessing the opposing party’s public website or other public information in cyberspace (for which no permission is needed), because the attorney’s motivation is the same. Id. at 6.
Third, the Committee rejected the blanket argument that the attorney-client privilege does not protect the contents of a Facebook page. The Committee reasoned that the privilege aims to encourage parties “to share freely” with their attorneys, and by way of comparison, the prohibition on ex parte communications seeks to avoid “disrupting the trust essential to the attorney-client relationship.” Id. at 8.
Fourth, the Committee rejected the argument that a recent Ninth Circuit opinion held that an attorney does not engage in deceptive practices when he obtains damaging information from a represented party. See U.S. v. Carona, 630 F.3d 917 (9th Cir. 2011). The Committee distinguished this recent opinion because it addressed the exclusion of evidence or “evidentiary consequences” — rather than a disciplinary proceeding — and the attorney had not made “direct contact” with the represented party as he would with the Friend request. Op. 2011-2 at 9.
In sum, even though “[s]ocial media sites have opened a broad highway on which users may post their most private personal information,” id., attorneys should continue to act reasonably, proceed with caution, and consider analogous non-cyberspace situations when they engage in electronic sleuthing of a represented party and even witnesses. Otherwise, they risk repercussions for entering this ethical minefield.