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March 15, 2014
Ethics panel delves into social media, ex parte communications

By Gary Blankenship
Senior Editor

Can a lawyer advise a client to “clean up” the client’s social media postings to remove information that may or may not be related to expected litigation?

The Professional Ethics Committee looked at that issue as well as whether prosecutors can have ex parte communications with a judge in certain exceptional instances and whether a lawyer can continue to represent a couple in a civil legal action after one informs the lawyer of an intent to file for divorce and withdraw from the other legal case.

The committee also agreed, in light of rules governing electronic signatures, to revisit Ethics Opinion 87-11, which says Bar rules prohibit lawyers from allowing nonlawyers to sign legal documents for them.

Social Media
On the social media issue, the PEC, which met January 24, instructed staff to prepare a proposed advisory opinion, which would become a formal ethics opinion if adopted by the PEC. The committee will consider that proposed opinion at its next meeting in June.

The inquiring attorney posed four questions related to Bar Rule 4-3.4, which prohibits an attorney from destroying, hiding, or altering, or instructing another person to destroy, hide, or alter, “a document or other material the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding . . . .”

The questions were:

* Before any litigation, can the lawyer advise the client to remove photos, videos, posts, and other information from his or her social media sites such as Facebook, Twitter, LinkedIn, and the like that are related to the incident for which the attorney is retained?

* Can the attorney, before litigation, advise the client to clean up the site of information that is unrelated to the incident for which the attorney is retained?

* Can the attorney advise the client to ensure that his or her Facebook and other social media accounts have their privacy settings set to prevent public viewing of those accounts, but give no other advice about information contained on those sites?

* If the attorney does advise the client to adjust the privacy setting to prevent public view, does the attorney have a duty, before litigation is begun, to advise the client not to remove postings regardless of whether they are related to the incident for which the attorney is retained?

Bar staff declined to answer the questions, citing a lack of precedent, and the attorney appealed to the PEC.

The PEC, in turn, directed staff to prepare an advisory opinion, but didn’t give detailed directions on what that opinion should include, which means it will likely be given a draft with several options.

“The only question is when do the duties [to preserve potential evidence] arise and the case law makes it clear the duty arises when the possibility of litigation arises,” said committee member Andrew Berman.

Committee Chair Loretta O’Keefe noted that Rule 4-3.4 says lawyers have a duty to preserve evidence and may not instruct others to conceal or destroy evidence.

Ex Parte
The ex parte issue involved a question that stemmed from a Bar grievance case that wound up being dismissed. The issue has also occupied the Criminal Law Section, which requested the PEC issue an opinion.

The underlying case involved the prosecution of defendants who were suspected gang members and where two witnesses were alleged to have been murdered prior to the trial. Prosecutors, concerned about witness tampering and witness safety, obtained the recordings of the defendants’ jailhouse telephone calls — including calls to their attorneys.

The prosecutors did not listen to the calls to the defense attorneys, but contacted the presiding judge in an ex parte communication for guidance. The judge, who expected that ultimately he would not be presiding over the trial, instructed the attorneys to keep him periodically informed about the calls and the defense attorneys were not informed about the ex parte meetings.

Eventually the case was assigned to a second judge, who kept the ex parte meetings for a while but then ordered that their existence and the recordings be revealed to defense counsel. Defense lawyers then sought recusal of the second judge, which was granted, and they asked the third judge to remove the prosecutors from the case, which was denied.

Three of the defendants filed a grievance against the prosecutors, and that was ultimately dismissed with a letter of advice but concerns continued. The Criminal Law Section appointed a committee to study the issue, and that panel recommended the Professional Ethics Committee issue an opinion giving guidance on when exceptional circumstances would justify such ex parte communications with a judge and what procedures to follow when engaging in an ex parte communication.

Bar staff recommended the committee not issue an opinion because it would in effect be rule-making, and the committee is charged with interpreting and advising on ethics rules, not making them. By a voice vote, the PEC agreed and rejected the request for an opinion.

At the Bar Board of Governors meeting the following week, Disciplinary Procedure Committee Chair Jay Manuel said the committee was discussing that issue, but was not prepared to make a recommendation that the board should direct the Professional Ethics Committee to issue an ethics opinion on such ex parte communications.

The inquiry about representing the possibly divorcing couple in a legal action came from an attorney who said he was defending the couple in a declaratory action. The attorney said the wife had informed him she intended to file for divorce, and also sought to be removed from the legal action.

The lawyer said he had informed the plaintiff attorney about the wife’s desire to be dropped from the suit and said he assumed if she was removed, he could continue to represent the husband. He added he perceived a potential conflict of representing both if the wife was not dropped from the suit, but said the wife had not indicated she wished him to cease representing her in the case, and asked for the Bar’s guidance.

Bar staff told the attorney if the wife remains a defendant, then a conflict of interest likely would exist and he would have to withdraw from the representation of both the husband and wife.

“The inquirer could not withdraw from representing just the wife because of the implications of the former client conflict rule,” Bar staff said in a letter to the attorney, and added that seeking a conflict waiver in those circumstances would not be advisable.

Even if the wife was dismissed as a client, the attorney may have a conflict because he may have information that could be used in representing the husband, which would be detrimental to the wife’s interests, according to the Bar staff’s letter of advice.

However, when the lawyer appealed to the committee, members said they didn’t have enough information, including whether the wife was actually proceeding with the divorce, to make a decision. Committee members voted to send a letter to the lawyer saying they didn’t have sufficient information to act.

On Ethics Opinion 87-11, the committee received a letter saying the opinion conflicts with Rules of Judicial Administration governing electronic signatures, which allows an electronic signature to be affixed by someone under a lawyer’s supervision.

The committee voted 27-1 to direct Bar staff to prepare a modification of the opinion to conform to the current electronic signature rules.

An official notice is in this News about the social media proposed opinion and the reconsideration of Ethics Opinion 87-11. Lawyers wishing to submit comments should send them to .

[Revised: 04-16-2017]