The N.J. Law Journal reports:
Enterprising lawyers beware: using Facebook as an investigative tool may get you into trouble with the bar, says an ethics opinion from California.
“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.
Attorney is representing Client, a plaintiff former employee in a wrongful discharge action. While the matter is in its early stages, Attorney has by now received former employer’s answer to the complaint and therefore knows that the former employer is represented by counsel and who that counsel is.
Attorney obtained from Client a list of all of Client’s former employer’s employees. Attorney sends out a “friending”1 request to two high-ranking company employees whom Client has identified as being dissatisfied with the employer and therefore likely to make disparaging comments about the employer on their social media page. The friend request gives only Attorney’s name. Attorney is concerned that those employees, out of concern for their jobs, may not be as forthcoming with their opinions in depositions and intends to use any relevant information he obtains from these social media sites to advance the interests of Client in the litigation.
Bar Association conclusion
A San Diego County Bar Association ethics committee 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.