Some time ago, in a blog far, far away, we explored the topic of social media and discovery. In particular, we had concluded that it would likely be a violation of Rule 4.2 of the Rules of Professional Conduct for a lawyer to try to “friend” an opposing party she knew to be represented in that matter. The conclusion was based upon the fact that a Facebook friend request was “a communication” under the Rule, and that the purpose of the communication was to obtain information related to the matter for which the party was represented. As you know, Rule 4.2 prohibits communications about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. Seemed like an easy question with an easy answer at the time.
Fast forward to July 2018, where the Ethics Committee has been studying a proposed ethics opinion on this very issue. An initial draft of the opinion reached the very same conclusion that we did. The latest opinion that was circulated, Proposed 2018 FEO 5,* reached the opposite result. Opinions #4 and #7 of the proposed ethics opinion state that either the lawyer, or any person at the lawyer’s direction, may request access to restricted portions of a represented person’s social network presence, so long as there is no misrepresentation. In other words, the proposed opinion finds that a lawyer or his agent can make a friend request on Facebook to a person the lawyer knows to be represented. Opinion #5 of the proposed ethics opinion also permits the lawyer to post or communicate directly on the represented person’s Facebook feed so long as the communication is not “intended to elicit information about the subject of the representation….” Wait, what? I cannot imagine why a lawyer, who has no relationship with a represented opposing party, would send a friend request or thereafter post on that person’s timeline, except to garner useful information about the subject matter of the representation.
Well, there are certainly arguments on both sides of this issue. Some believe that seeking truth or exposing the truth is the most important goal and that an interpretation offering more protection to the represented individual frustrates that goal. While discovery tools are available, or hiring a private investigator is possible, it certainly would be more expedient to be able to see what the represented person (or their friends or family) is posting online. There may be an argument that traditional discovery may not be available or is not likely to extract the same information as Facebook postings.
At the same time, others argue that some people do not understand the full implications of accepting friend requests. Some small business owners, for example, believe that social media is the perfect platform for growing their business, and have an “accept all friend requests” policy. Others may recognize the lawyer’s name and know enough to decline any friend request by the lawyer, but certainly would not know the name of the lawyer’s paralegal making a friend request. Does the omission of certain information about the person making the request somehow make that request misleading? Lawyers do have an obligation to advise their clients about social media posts and the dangers of over-sharing. So, is it the client’s responsibility to be more vigilant about who they allow into their network?
There is no doubt that a tension exists between the protection of the represented person under Rule 4.2 and the desire to find the truth. To me, the friend request issue and its resolution may turn upon the answer to three questions: First, should Rule 4.2 be interpreted to prohibit communications between a lawyer and represented person that, while not about the subject of the representation on their face, are intended to discover or obtain information related to the subject matter of the representation? To put it another way, does interpretation of the Rule in this instance turn upon the purpose of the lawyer’s communication, or on the actual communication itself? Second, can the lawyer, through a friend request, invite herself into a conversation with a represented person, hoping to glean some useful information, without disclosing the lawyer’s purpose or disclosing that she represents another party in the matter. Rule 4.3, dealing with unrepresented persons, requires that much. If we are making an exception to permit online friend requests, should we apply the minimal protections in 4.3? Third, how do we resolve the tension between truth-seeking and client protection? Should one goal be placed above the other. Rule 4.2 is not the only rule that would tend to, in some instances, frustrate the fact-finding goal. The confidentiality rule is another, but there are exceptions to that rule that appear to serve a greater good or a weightier goal. One of those exceptions is candor to a tribunal. With this opinion, the State Bar may be blurring the lines, if not carving out an exception, for certain online communications.
Comment [1] to Rule 4.2 spells out the three primary concerns addressed by the Rule, which help preserve “the proper functioning of the legal system”:
- Protecting a person who has chosen to be represented by a lawyer in a matter against overreaching by other involved lawyers;
- Protecting that individual from interference by involved lawyers with the attorney-client relationship; and
- Protecting that individual against uncounseled disclosure of information relating to the representation.
I believe it is primarily the third concern that merits further analysis. The Ethics Committee, at its July meeting, sent this proposed opinion back to subcommittee for further study. While the current interpretation of Rule 4.2 in Proposed 2018 FEO 5 feels wrong, I usually need more than a feeling or gut reaction to justify an outcome. On the other hand, I tell my clients, never ignore your gut.
*UPDATE: This proposed ethics opinion was rejected by the Full Council of the State Bar on October 26, 2018. This matter will go back to the Ethics Committee at its January 2019 meeting.