June 28, 2011
San Diego County Bar Tackles Lawyer Friend Requests and the Ex Parte Rule
[Post by Venkat Balasubramani]
The San Diego County Bar Association recently tackled the issue of whether a lawyer's friend request to an employee of a party violates the rule barring ex-parte communications by a lawyer with a party whom the lawyer knows or should know is represented by counsel. You can access the opinion on Scribd here, and it's worth a read.
The factual scenario involved a lawyer who represented a plaintiff against a company in a wrongful discharge lawsuit. The lawyer knows the defendant-employer is represented by counsel, but obtained a list of the defendant's current employees. The client provides the list, identifying which of those employees may be disgruntled and therefore likely to provide dirt on the defendant-employer. The lawyer then sends Facebook friend requests to these individuals.
The opinion looks to California Rule 2-100, which provides that:
While representing a client, a [lawyer] shall not communicate directly or indirectly about the subject of the representation with a party the [lawyer] knows to be represented by another lawyer . . . unless [the other lawyer first consents].
The opinion first tackles the issue of whether the employees are "parties" for purposes of the rule. If they exercise discretion and determine the employer's policy, they may be treated as part of the represented corporate-party for purposes of this rule. Consequently, the opinion advises that the lawyer should first check with his or her client as to what role the employees play in the organization before treating the employees as unrepresented parties. Assuming they are policy-making employees and therefore "represented," the opinion looks to whether the lawyer's friend request constitutes a communication "about the subject of the representation." The opinion parses the language of the friend request and the fact that it's initiated by the lawyer but transmitted by Facebook, and concludes that the friend request would violate the rule against ex parte contact:
[i]f the communication to the represented party is motivated by the quest for information about the subject of the representation, the communication . . . is about the subject matter of that representation. . . . This becomes clearer when the request to friend . . . is transferred from the virtual world to the real world. Imagine that instead of making a friend request by computer, opposing counsel instead says to a represented party in person and outside of the presence of his attorney: "Please give me access to your Facebook page so I can learn more about you." That statement on its face is no more "about the subject of the representation" than the robo-message generated by Facebook. That what the attorney is hoping the other person will say in response to that facially innocuous prompt is "Yes, you may have access to my Facebook page. Welcome to my world. These are my interests my likes and dislikes, and this is what I have been doing and thinking recently.
The opinion also addresses a few objections:
The friend request does not refer to the issues raised by the representation: With respect to this objection, the opinion notes that even open-ended questions can "impel the other side to disclose information that is richly relevant to the matter," even if the question itself is directed to a subject relating to the representation. Information "uncovered in the immediate aftermath of a represented party's response to a friend request at least 'might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.'" Although the initial friend request may not relate to the representation, it's the type of open-ended question that is designed to elicit a response that provides useful information. Indeed, the opinion notes that once you have become a person's Facebook friend, you have access to a wealth of information regarding that person, including information that will potentially be advantageous to know in litigation.
Friending a represented party is the same as accessing the opposing party's website: The second objection argued that accessing a publicly available website of a party who is represented is permitted, and this is no different. The opinion states that there is a key difference between the two. In one instance the webpage is publicly accessible, and in the other, you need permission--acceptance of the friend request--in order to access it. The opinion concludes that if a witness or opposing party maintains a profile on a social network that is freely accessible by the general public, there is no ethical bar to its access by a lawyer.
The opinion also dismisses a couple of other objections: (1) statements in a Facebook profile are not necessary protected by the attorney/client privilege (the restriction on ex parte contact goes beyond this information), and (2) courts have rejected deception as the basis for excluding evidence in the criminal context (the standards for when evidence should be excluded in a criminal case are not the same as those which prohibit ex parte contacts in civil cases). The opinion notes that the policy underlying the rule prohibiting ex parte access is to restrict the opposing lawyer from interfering in an existing lawyer/client relationship and exerting undue influence through this interference. The tenor of the opinion is that this risk of undue influence clearly exists in the context of a Facebook "friendship."
The opinion raises some interesting issues and takes a careful look at the rules and other opinions on this issue. (The Philadelphia Bar Association and the New York State Bar Association have both weighed in on this issue as well.) The opinion cites to another case (U.S. v. Sierra Pacific Industries, 2010 WL 4778051 (E.D. Cal. 2010)) where the court held that a lawyer who was litigating a claim against the U.S. Forest Service violated the ex parte rule when he attended a "field trip" organized by the Forest Service and extensively questioned Forest Service employees on their policies. The field trip was open to the public and thus mere attendance did not violate the rule. The court focused on the questioning, rather than the attendance. In contrast, here, the opinion concludes that merely sending a friend request could violate the rule.
I wonder whether the result would have been different if the lawyer in question sent a friend request that expressly addressed the ex parte issue--e.g., "I'm John Doe, counsel for Jane Doe, and I'd like to speak with you about this matter. If you are represented by counsel, please do not accept this friend request."
The opinion serves as a good reminder that despite the treasure trove of evidence that may be contained in social media profiles, accessing this information is another matter.