Thursday, July 7, 2011

It is unethical for lawyer to send Facebook "friend" request to represented party as discovery tactic

In this advisory opinion, the San Diego County Bar Legal Ethics Committee (Op. 2011-2, 5/24/11) considered a hypothetical in which the plaintiff's attorney in a wrongful termination action "friends" high ranking employees of the employer-defendant hoping they will make comments favorable to the plaintiff.  From the BNA Electronic Commerce & Law Bulletin (subscription required):

A lawyer may not ethically send a “friend” request to an opponent or a potential witness with the goal of getting inside information for a client's matter. . . .
The committee concluded that a friend request intended to elicit information from a represented party about the subject matter of the client's representation amounts to an improper ex parte contact, no matter how the request is worded or transmitted.
More broadly, the opinion declares it deceitful and therefore improper for a lawyer to send a friend request to potential witnesses without disclosing the purpose of the request, regardless of whether the witnesses are represented by counsel.

The committee found that the generic email Facebook sends to the recipient of a "friend" request is enough to alert the person that the communication is  “about the subject of the representation” within the meaning of California Rule of Professional Conduct 2-100 and ABA Model Rule 4.2 if the attorney's motive is to obtain private information for use in the client's case . The committee went on to find that "the attorney's duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.”

You can read the full text of the ethics opinion here.


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