Fall 2011 Defense Comment 23
F
acebook was launched in 2004. In
its infancy, Facebook was a website
where college students could create
profiles, share pictures, and post comments.
Facebook now has more than 750 million
users of all ages. us, it is no surprise that
lawyers now grapple with ethical issues and
privacy concerns surrounding the use of
Facebook in litigation.
Until recently, California lawyers were
forced to look to Oregon, Pennsylvania
and New York for ethical guidance on
communicating with represented and
unrepresented parties through Facebook.
e landscape changed with the addition of
a May 24, 2011 legal ethics opinion issued
by the San Diego County Bar Legal Ethics
Committee.
1
The San Diego opinion presents the
following scenario: An attorney represents
an individual against his former employer.
e attorney knows that the employer is
represented by counsel. e client gives
his attorney a list of all of his former
co-workers. e attorney then uses his
Facebook page to send a “friend” request
to two high-ranking company employees
who he believes to be disgruntled. e
“friend” request only contains the attorney’s
name – it does not include a message to
the recipients as to why the attorney wants
to be their friend.
e question presented by the opinion
is whether the attorney has “violated his
California Enters the
Debate on the Ethics of
Attorney “Friend” Requests
rough Facebook
By Marie Trimble, Esq.
ethical obligations under the California
Rules of Professional Conduct, the State Bar
Act, or case law....” e simple answer is yes.
CONTACT WITH A
REPRESENTED PARTY
THROUGH FACEBOOK
CONSTITUTES A
VIOLATION OF CALIFORNIA
RULE OF PROFESSIONAL
CONDUCT 2-100
The San Diego opinion first considers
whether the “friend” request violates
California Rule of Professional Conduct
2-100. Rule 2-100 states that an attorney
“shall not communicate directly or indirectly
about the subject of representation with a
party the member knows to be represented
by another lawyer in the matter....”
2
e
language of Rule 2-100 raises the following
issues: (1) whether the high-ranking
employees are considered “represented”
parties; and (2) whether the “friend”
request alone constitutes contact with a
represented party “about the subject of
representation.”
e first answer is not surprising. e
opinion concludes that “the term
‘high-ranking employee’ suggests that
these employees exercise substantial
discretionary authority over decisions
that determine organizational policy, and
therefore should be treated as part of the
represented corporate party for purposes
of Rule 2-100.”
e second answer goes to the heart of
the San Diego opinion and is addressed
in two parts. First, the opinion concludes
that a “friend” request from an attorney to
a represented party clearly constitutes an
indirect, ex parte communication. Second,
the opinion considers whether a mere
“friend request statement” – and nothing
more – constitutes a communication
“about the subject of representation.”
e opinion concludes: “We believe the
context in which that statement is made
and the attorney’s motive in making it
matter.... If the communication to the
represented party is motivated by the quest
for information about the subject of the
representation, the communication with
the represented party is about the subject
of representation.”
e message in the San Diego opinion is
clear – it is unethical for an attorney to send
a “friend” request to a represented party.
THE SAN DIEGO OPINION
ANTICIPATES FOUR
PRIMARY OBJECTIONS
e San Diego opinion anticipates four
potential objections to its prohibition on
attorney “friend” requests to represented
parties.
First, the opinion anticipates the objection
that a mere “friend” request is not a
Continued on page 24
Vol. 26, No. 3 / Fall 2011
24 Defense Comment Fall 2011
communication “about the subject of
representation.” e opinion cites to the
Rutter Guide for the proposition that “for
discovery purposes, information should
be regarded as ‘relevant to the subject
matter’ if it might reasonably assist a party
in evaluating the case, preparing for trial,
or facilitating settlement thereof.” e
opinion concludes that the information
learned through a friend request might
“reasonably assist a party in evaluating
the case, preparing for trial, or facilitating
settlement thereof.”
Second, the opinion dispels the belief
that sending a “friend” request to a
represented party is the same as searching
the represented party’s public website.
Similar to the Oregon ethics opinion, the
San Diego opinion states that “nothing
blocks an attorney from accessing a
represented party’s public Facebook page;”
however, a private page is off limits.
Third, the opinion anticipates the
argument that Facebook communications
are not protected by the attorney-client
privilege. The opinion focuses on
the policy behind the attorney-client
privilege, quoting the court’s holding in
U.S. v. Lopez: “e trust necessary for a
successful attorney-client relationship is
eviscerated when the client is lured into
clandestine meetings with the lawyer for
the opposition.”
3
e opinion concludes
that this reasoning applies to an “ex parte
friend request.”
Lastly, the opinion anticipates an
objection based on the Ninth Circuit’s
recent decision in U.S. v. Carona.
4
ere,
the Ninth Circuit ruled that a prosecutor
did not violate Rule 2-100 when he
presented fake subpoena attachments to
a cooperating witness because, in part,
there was no evidence of direct contact
between the prosecutor and the defendant.
e San Diego opinion distinguishes the
Ninth Circuit’s holding from the instant
question, stating that “the same cannot
be said of an attorney who makes a direct
ex parte friend request to a represented
party.”
THE ATTORNEY’S “FRIEND”
REQUEST IS FURTHER
PROHIBITED BY THE DUTY
NOT TO DECEIVE
California has not incorporated ABA
Model Rule 4.1(a) or Rule 8.4(c), which
prohibit an attorney from knowingly
making a “false statement of material
fact or law to a third person” or engaging
in “conduct involving dishonesty, fraud,
deceit, or misrepresentation.” e San
Diego opinion, however, relies on case law
for the proposition that attorneys have a
“duty of candor” to the court and opposing
counsel.
5
e opinion concludes that “if
there is a duty not to deceive opposing
counsel, who is far better equipped by
training than lay witnesses to protect
himself against the deception of his
adversary, the duty surely precludes an
attorney from deceiving a lay witness.”
e San Diego opinion follows a 2009
Philadelphia Bar Association opinion,
which prohibits an attorney from sending
a “friend” request to an unrepresented,
third-party witness unless the attorney
discloses his or her role in the litigation.
6
e Philadelphia Bar Association opinion
noted that the failure to disclose the
attorney’s role in the litigation “omits a
highly material fact, namely that the third
party who asks to be allowed access to the
witness’s pages is doing so only because he
or she is intent on obtaining information....”
for use in litigation.
e San Diego opinion sends a message to
all attorneys that they must proceed with
caution when navigating Facebook for use
in litigation.
ENDNOTES
1 SDCBA Legal Ethics Opinion 2011-2.
2 See also, ABA Model Rule 4.2.
3 4 F.3d 1455, 1459 (9th Cir. 1993).
4 630 F.3d 917 (9th Cir. 2011).
5 See In re Central European Industrial
Development Co. (Bkrtcy. N.D. Cal. 2009)
2009 WL 779807; Shafer v. Berger, Kahn,
Shafton, Moss, Figler, Simon & Gladstone,
107 Cal. App. 4th 54 (2003).
6 See Opinion 2009-02.
The Ethics of Facebook – continued from page 23
