Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Social Media Traps: Ex Parte Communication With A “Friend”

Before you click the “Add Friend” request button in cyberspace, think twice!  Are you violating any ethical rules against ex parte communication?

California Rule of Professional Conduct 2-100 states in pertinent part: “(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.  (B) For purposes of this rule, a “party” includes:  (1) An officer, director, or managing agent of a corporation… or (2) An…employee of a…corporation…if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.”

The Discussion section for Rule 2-100 explains that the intention of this Rule is to control communication between an attorney and an opposing represented party. If for instance, an attorney sends a Facebook friend request to an adverse party who is represented by an attorney, this would be regarded as an indirect if not direct ex parte communication with a represented party under Rule 2-100(A).  And, if the attorney making the friend request has an ulterior motive to gain information “about the subject of the representation”, that attorney would, in essence, be in violation of Rule 2-100(A).  

In Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1392, the Court emphasized that “relevancy to the subject matter has been construed to be broader than relevancy to issues…” Similarly, a communication “about the subject of the representation” as noted in Rule 2-100 has a broader scope than a communication relevant to the issues in the representation for purposes of determining admissibility at trial.  Therefore, an attorney is running the risk that any information gained through the ex parte communication may very well be deemed to be “about the subject of the representation” constituting a violation of Rule 2-100.  

Likewise, ex parte communication through social media between an attorney and the Court may violate California Rule of Professional Conduct 5-300, which states in pertinent part: “(B) A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer except: (1) In open court; or (2) With the consent of all other counsel in such matter; or (3) In the presence of all other counsel in such matter; or (4) In writing with a copy thereof furnished to such other counsel; or (5) In ex parte matters. (C) As used in this rule, “judge” and “judicial officer” shall include law clerks, research attorneys, or other court personnel who participate in the decision-making process.”

In Matthew Zaheri Corp. v. New Motor Vehicle Board (1997) 55 Cal.App.4th 1305, 1318, the Court held that a communication “upon the merits of a contested matter” for purposes of the rule “extends to communication of information in which counsel knows or should know the opponents would be interested.  Construed in aid of its purpose, we conclude the standard generally bars any ex parte communication by counsel to the decision-maker of information relevant to issues in the adjudication.”

The Court of Appeal in In re Jonathan S. (1979) 88 Cal.App.3d 468, 472, cautioned that “unless expressly authorized by law, ex parte contacts between the court and counsel are always ill-advised and violate the State Bar Rules of Professional Conduct where such contacts deal with the merits of a pending, contested matter.  Moreover, unauthorized ex parte contacts of whatever nature erode public confidence in the fairness of the administration of justice, the very cement by which the system holds together.”

Thus, an attorney befriending the Court on Facebook or other social media not only may be subjected to ex parte communication in violation of Rule 5-300, but such communication in any event is also ill-advised.

An attorney should think once, twice, or maybe three times before sending a friend request on Facebook or other social media to a represented party opponent or the Court, as such communication may very well be regarded as or lead to unauthorized ex parte communication in violation of the California Rules of Professional Conduct.

- Rayna A. Stephan, Deputy City Attorney, Office of the San Diego City Attorney

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**