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Balancing Today’s Social Media and the California Rules of Professional Responsibility for Lawyers

Introduction

In California, lawyers are governed by the state’s Rules of Professional Conduct. A willful failure to comply with these rules could subject a lawyer to State Bar discipline (Rule 1-100(A)).

Rule 5-200 states that in presenting a matter to a tribunal, a lawyer shall employ such means “only as are consistent with truth.” This is referred to as an attorney’s duty of candor. California lawyers must conduct themselves honestly whether they are in the courtroom or not. (See Cal. Bus. & Prof. Code § 6106.)

Candor and Social Networking

So how does the duty of candor fit into a society where most people are part of some type of social media website community, such as Facebook, Twitter, Instagram, etc.? Although this area still has a lot of development still to come, the California bar and its various committees have begun to weigh in. Guidelines are being developed by the California state bar to assist with the blurred lines between proper and improper conduct for attorneys and the social networking sites.

For example, “friending” a represented party on Facebook and other social media sites has been deemed to violate California Rule of Professional Conduct 2-100. This rule prohibits an attorney to communicate directly with another party who is represented by other counsel without the express consent of that attorney.

However, friending a judge is more of a gray area. A judge may friend lawyers who might appear before him or her, but not if the lawyer has pending cases with that judge. If there is a case where a judge and an attorney are “friends” there must be a disclosure AND they must unfriend each other. The California Judicial Ethics Committee has issued a formal opinion that presents several factors to examine in determining whether online interactions between judges and lawyers might create the appearance of impropriety:

  1. The nature of the social networking site (the more personal the site, the greater the potential for the appearance of impropriety);
  2. How many “friends” the judge has on his or her page (the more friends, the lower the likelihood of the appearance of impropriety);
  3. The judge’s practice in deciding whom to include in his or her online social network (the more inclusive the judge’s site, the less likely the appearance of impropriety); and
  4. How regularly the specific attorney appears before the judge. (Cal. Jud. Ethics Comm. Op. 66 at p. 8.)

Lawyer-judge communication has the potential to violate California Rule of Professional Conduct 5-300, which governs contact with officials. The rule states in part that a lawyer may not communicate, directly or indirectly, with a judicial officer or a judge about the merits of a pending contested matter except: in open court; with the consent of all other counsel; in the presence of all other counsel; or in writing, provided a copy is furnished to the other attorneys in the case. An “ex parte” message to a judge on a social networking site appears to violate this rule if the content concerns the merits of a pending case.

Friending a juror is also problematic. Professional Rule of Conduct 5-320 bars a lawyer connected with a case from having any contact, direct or indirect, with anyone the lawyer knows to be a resident of the venue from which the jury on the case will be selected. Paragraph (C) of Rule 5-320 states that even lawyers not connected with the case are barred from communicating directly or indirectly about it with jurors. A “juror” under this rule includes any person who is empanelled as well as anyone who has been excused or discharged from the relevant jury pool. Therefore, for all practicing attorneys, if they know someone called up for jury duty – even on a case they have no connection with – they are not supposed to communicate with that person about the case.

According to a recent Formal Opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility (April 24, 2014), “A lawyer may review a juror’s or potential juror’s internet presence…but may not communicate directly or through another.”

Although this entire area will certainly evolve further, it is clear the California state bar and its various committees have begun to weigh in. For now, it is prudent for attorneys to become aware of the state’s official opinions and positions on this topic as the guidelines continue to evolve.

ABOUT THE AUTHOR: Nicole Hermanson is a graduate of Pepperdine University School of Law. She focuses on products liability and business litigation. Contact her at NHermanson@tysonmendes.com.

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the California Rules of Professional Responsibility for Lawyers