Like Romeo, many attorneys are in an ethical quandary when it comes to the discovery of information on social media sites. Increasingly more attorneys are turning to the Internet to dig up the dirt on potential witnesses, adverse litigants, expert witnesses, and other attorneys. But this can get you in trouble depending upon the stage of the litigation or criminal proceedings.
The San Diego Bar Association has recently provided some guidance by releasing SDCBA Legal Ethics Opinion 2011-2. Daniel Eaton who authored the Ethics Opinion said it’s the first to confront ex parte communication through social media.
In the opinion an attorney ‘friends’ two high ranking employees who work at the same company as his client – the plaintiff in the litigation. The attorney knows that the company is represented by counsel and “intends to use any relevant information he obtains from these social media sites to advance the interests of Client in the litigation.” Is there anything wrong with that?
Like many legal answers, the phrase “it depends” comes to mind rather quickly. That’s because the law surrounding the discovery of information from social networking sites is extremely unsettled. While some judges allow discovery of the information, others do not. And here, the issue is not the admissibility of evidence – but how the information was obtained. The attorney seeks to friend two high-ranking employees at the company knowing that the company is represented by counsel. Is this unethical conduct?
The Ethics Opinion concluded by stating that this is unethical conduct. The Opinion states that this is deceptive conduct and that ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible.
It is the opinion of at least one Bar Association that ethical rules bar an attorney from making an ex parte friend request of a represented party. And while Ethics Opinion are not law, they are given great deference by courts.
 See Digital Sequestration?