Ok, maybe it isn’t the rule of Jennifer. But I certainly say it enough in my talks. Here’s the absolute truth of online behavior. If you cannot do something offline you cannot do it online. Period. Do not pass Go. Do not collect $200.
I’ve previously discussed the Philadelphia and New York guidance opinions on friending witnesses or other parties on Facebook. Now California has joined the field and it too agrees 100% with the rule of Jennifer.
- Since you may not communicate with people who are already represented offline, you may not do so online.
- If you may not be deceptive offline, you may not be deceptive online.
In this case we are looking to San Diego County Bar Association Guidance Opinion, 2011-2 for an issue surrounding communication with represented parties and/or potentially witnesses via Facebook.
This particular case deals with employees of a company. The company is involved in the suit and the attorney represents plaintiff ex employee who has filed suit.
Question
The question at hand is whether it is ok to friend employees of the company. Keep in mind that the attorney in this situation is aware that the employer has retained counsel. Also keep in mind that the attorney did not state his status as the attorney in the friend request. The request simply included his name.
Rule
The rule offline is very simple. Once someone has retained counsel, the attorney for the opposing side may not engage in ex parte communicate with that individual. This is ABA model rule 4.2. When it comes to employers, covered individuals include those who are known as high ranking employees. This is comment 7 to ABA rule 4.2. The SDCBA looks to both these rules and California’s in making its decision.
While in California ABA model rules 4.1(a) and 8.4(c), both dealing with deception, are not applicable; the SDCBA’s analysis follows the Philadelphia Guidance opinion here. As I have said previously, when it comes to attorney ethics we construe the term deception to include failure to disclose a material fact. The SDCBA agrees with this concept.
Opinion
A threshold question in the SDCBA opinion is whether the employees in question are high ranking enough to be considered represented. Assuming they are, they may not be contacted. Any effort to engage in ex parte communication with a represented party, including via social media, is unacceptable.
The next question is, if the employees are simply witnesses or other unrepresented parties, may the attorney friend them. The answer is that the attorney may friend such individuals, but s/he may not do so in a deceptive fashion. This means that the attorney would have to reveal his status as the attorney in the case as part of the friend request.
Conclusion as to Opinion
The opinion here makes sense. Since it would be inappropriate to communicate with high level employees of a represented employer offline, an attorney may not do so online. In addition, since attorneys may not engage in deception, and failing to mention he is the attorney in a case is deception, the attorney must reveal his status.
Publicly Available Facebook Pages
As a side note, it is perfectly permissible to review publicly available Facebook pages. The issue is not ethical research. The issue is unethical attempts to communicate inappropriately and/or gain access to information the employee might otherwise have limited to friends through privacy settings. I note that the SDCBA opinion specifically chose not to address this issue. Both Philadelphia and New York have done so, however.