Earlier this year, the JAPCA Ethics Alert Blog reported on San Diego Bar Opinion 2011-2 (May 24, 2011) 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. Here’s a summary of the JAPCA Ethics Alert and San Diego Bar Opinion:

• An attorney representing a former employee against his former company in a wrongful discharge action sends a “friend” request to two high-ranking employees with the client’s former company 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.  The request provided the name of the attorney but did not reveal the reason for the request.  The opinion focused on whether the friend requests violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.
•  Even though the friend requests makes no reference to anything other than the sender’s name, the request was found to relate to the “subject matter of the representation” since the communication was motivated by a search for information about the subject matter of the representation.  The opinion 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 friend request violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.  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.

The JAPCA Ethics Alert notes that the California Rule in question is the equivalent of Florida Bar Rule is 4-4.2. While other state’s Bar Ethics Opinions are not binding and are for prepared for guidance only, attorneys should be mindful of how a similar situation would be analyzed under the rules of their local jurisdiction.  You can read more posts from the JAPCA Ethics Alert here.