This article is about the ethics for lawyers. Simultaneously, it is an interesting read about how professionals are trying to use social networking sites to their advantage.
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by Cynthia Foster
by Cynthia Foster
The Recorder
Enterprising lawyers beware: using Facebook as an investigative tool may get you into trouble with the bar, says an ethics opinion from the San Diego County Bar Association.
The opinion concludes that sending a Facebook "friend request" to a represented party violates California Rule of Professional Conduct 2-100 and could be cause for discipline. The opinion's author, Daniel Eaton, said it's the first to confront ex parte communication through social media.
Eaton, an employment defense partner at Seltzer Caplan McMahon Vitek in San Diego, said the bar association's ethics committee considered whether lawyers could approach Facebook the way they approach the wider, public Internet — checking a company's website for information related to a matter, for instance.
"Lawyers are making very wide use of social media, and we wanted to test the proposition that lawyers could use social media to reach out to parties that are represented. Is that a legitimate form of the kind of broad investigation that lawyers engage in using the Internet?" Eaton said.
He didn't think so. But other members of the ethics committee, including its co-chair, San Diego County Deputy District Attorney Wendy Patrick, were dubious.
"When you just hear the proposition it kind of takes you aback, because how could a friend request concern the subject matter of representation? It doesn't appear on its face to violate the rule," she said.
Patrick, who is also vice chair of the State Bar's Committee on Professional Responsibility and Conduct, said she was won over to Eaton's position after reading his research. The rest of the committee was, too. The opinion, which Eaton said was the lengthiest he could remember the committee ever voting on, passed unanimously in May and was approved by the association's board last week.
The opinion is not binding in state court, but according to CRPC Rule 1-100 should be used by attorneys as a behavioral guide. Eaton said the committee was surprised to find that no other associations had directly addressed the link between social media communication and ex parte communication.
According to the opinion, lawyers who try to friend opposing parties as an investigative tool are attempting to deceive them.
"And who needs friends like that?" said Patrick.
