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Legal Ethics

Facebook Friend Request to Exec of Represented Corp. May Violate Ex Parte Rule, Opinion Says

Posted Jun 23, 2011 7:34 PM CDT
By Martha Neil

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A lawyer who sends a Facebook friend request to executives of a corporation he or she knows is represented by counsel in a litigation matter is violating a legal ethics rule against ex parte communications with parties, the San Diego County Bar Ethics Committee held in an advisory ethics opinion (PDF) last month.

However, "nothing in our opinion addresses the discoverability of Facebook ruminations through conventional processes, either from the user-represented party or from Facebook itself," writes the San Diego committee in its opinion.

"The conclusion we reach is limited to prohibiting attorneys from gaining access to this information by asking a represented party to give him entry to the represented party’s restricted chat room, so to speak, without the consent of the party’s attorney. The evidentiary, and even the disciplinary, consequences of such conduct are beyond the scope of this opinion and the purview of this committee."

The opinion is billed in a Recorder article as the first to address the issue.

But prior ethics opinions in New York and Philadelphia have focused on similar Facebook friending concerns:

Lawyers Can’t Friend Potential Witnesses Under False Pretenses, Ethics Opinion Says

Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says

Friending a Naive Adverse Witness for Info Could Violate Ethics Rules

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