Hello and happy 2012 to everyone! I hope that you had a great New Year’s holiday and now it is back to work for all of us! This JACPA Ethics Alert/blog will discuss the 2011 Opinion of San Diego Bar County Legal Ethics Committee addressing a hypothetical involving a lawyer who represents former employees in an employment lawsuit and sends “friend” requests on social media websites to higher level employees of the opposing party (employer) identified by the client as being disgruntled. The opinion is San Diego Bar Opinion 2011-2 (May 24, 2011).
The hypothetical situation involved an attorney representing a former employee against an employer/company in a wrongful discharge action. The lawyer sends “friend” requests to two high-ranking employees with the client’s former company/opposing party whom the client had identified as being dissatisfied with the employer and therefore likely to make disparaging comments on their social media pages. The attorney intended to use information obtained from the social media websites to advance his client’s interests in the litigation. In addition, the “friend” requests gave only the name of the attorney and did not reveal the reason for the request.
The opinion analyzed the context in which the request was made and the lawyer’s motives and, since the communication was motivated by a search for information about the subject matter and issues related to the representation, it was related to the “subject matter of the representation.” Even though a “friend” requests makes no reference to anything other than the sender’s name, the subject of the representation does not have to be directly referenced in the request to be “about” the subject matter of the representation. The opinion also rejected the argument that sending a “friend” request to a represented party was no different from accessing an opposing party’s public website since the only reason for the “friend” request is to get past the restricted access on the social media page in order to gather information from the represented employee.
The opinion found that the “friend” requests violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct. Unauthorized communication with represented parties is prohibited by California Bar Rule 2-100 (the equivalent Florida Bar Rule is 4-4.2). According to the opinion, a lawyer seeking to obtain information from a represented party on restricted social media websites must either: (1) obtain the consent of the represented party’s attorney and fully disclose his or her affiliation and the purpose of the “friend” request; or (2) seek the information through discovery.
Bottom line: This Ethics opinion addresses some important emerging ethics issues related to social media and the opportunities for lawyers to use (or potentially misuse) it to gain an advantage in a pending matter. As I have said previously, Bar Ethics Opinions are not binding and are for guidance only; however, good faith reliance on an opinion can be used in mitigation if the opinion is followed in good faith and if issues later arise.
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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