Ethics opinion would let attorneys “friend” some opposing parties

A new proposed ethics opinion would allow attorneys to request access to view the private portions of social media profiles belonging to people not represented by an attorney—but it would not allow them to request such access from people represented by counsel, as a previous, now-rejected, version of the same opinion would have done.

The rewritten Proposed 2018 Formal Ethics Opinion 5, published by the state bar’s ethics committee at its most recent meeting in April, clarifies that lawyers can always view the public portion of a person’s social network presence, but are forbidden from using any form of deception to gain access to any restricted portions of such profiles or accounts.

The opinion now draws a stark dichotomy, however, when it comes to attorneys using their true identity to request access to those walled-off areas. Under the opinion, attorneys could make such requests of unrepresented persons, since the person contacted has full control over who views the information on his or her social network site and is free to accept, reject, or ignore the request, or to ask for additional information.

But attorneys could not make similar requests of anyone they knew to be represented by counsel without the opposing attorney’s consent, nor could they direct a third party to do the same. Such requests would violate the rule against contacting an opposing party represented by counsel, the opinion concludes.

That’s a notable departure from an earlier version of the opinion that was overwhelmingly rejected in a show-of-hands vote by the full State Bar Council during its meeting last October. The original version of the opinion had been unusually controversial—the ethics committee received a surge of comments about it, basically all of them negative. The committee ultimately voted 17-12, an unusually narrow margin, to ask the council to adopt the original version before it was shot down.

The opinion would also provide that lawyers may request or accept information from a third party with legitimate access to restricted portions of a person’s social network presence.

The council published one other proposed ethics opinion at the April meeting, which would provide that, except as otherwise prohibited, ex parte communications with a judge regarding scheduling or administrative matters are within the discretion and preference of the tribunal and the presiding official. The proposed opinion would partly overrule an existing opinion regarding ex parte communications.

The ethics committee welcomes comments on the proposed opinions before the opinions are considered at the committee’s July meeting. Any comment or request should be directed to Lanice Heidbrink at [email protected] no later than June 28.

The council also adopted three ethics opinions at the April meeting. 2019 Formal Ethics Opinion 1 rules that a lawyer may not jointly represent clients and prepare a separation agreement, while 2019 Formal Ethics Opinion 2 rules that a lawyer may not agree to terms in an ERISA plan agreement that usurp a client’s authority as to the representation.

2019 Formal Ethics Opinion 3, which had also drawn quite a bit of interest, rules that an ongoing sexual relationship between opposing counsel creates a conflict of interest in violation of Rule 1.7(a).

Follow David Donovan on Twitter @NCLWDonovan