Other New York ethics authorities draw a tighter line on "false friending," finding such strategies
unethical. (See New York City Bar Ass'n Formal Op. 2010-2 (2010)(available at www.abcny.org
2
).)
California Rules
In California, lawyers are governed by the standards embedded in 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," and shall not seek to mislead the judge, judicial officer, or jury by an
artifice or false statement of fact or law. Rule 5-200 also says that a lawyer shall not "intentionally
misquote to a tribunal the language of a book, statute, or decision"; nor may an attorney, knowing its
invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or
declared unconstitutional. (See Cal. Rules Prof. Conduct, Rule 5-200 (A)-(D).)
The statutes governing law practice echo the same theme, mandating that it is the duty of an attorney to
"employ, for the purpose of maintaining the causes confided to him or her those means only as are
consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false
statement of fact or law." (Cal. Bus. & Prof. Code § 6068(d).) No lawyer should take these words lightly,
for a violation of these commands is cause for suspension or disbarment. (Cal. Bus. & Prof. Code § 6103.)
As for candor, California lawyers must conduct themselves honestly whether they are in the courtroom or
not. (See Cal. Bus. & Prof. Code § 6106.) Section 6106 arguably governs a lawyer's activities and
statements on social networking sites, as it states that "the commission of any act involving moral
turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an
attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for
disbarment or suspension." Further, the Business and Professions Code imposes misdemeanor criminal
liability on a lawyer who engages in or consents to any deceit or collusion "with intent to deceive the
court or any party." (Cal. Bus. & Prof. Code § 6128(a).)
Local California bar associations are beginning to weigh in on the ethics of social networking - with
respect to judges, jurors, and adverse parties. The San Diego County Bar Association has observed that
friending a represented party violates California Rule of Professional Conduct 2-100. (See San Diego
County Bar Ass'n, Legal Ethics Op. 2011-2 (available at www.sdcba.org).) Its opinion cites the above-
mentioned New York and Philadelphia opinions and notes in passing that the context in which a friend
request is made, and the attorney's motive in sending it, are relevant to the ethics inquiry. But the
conclusion is clear: "[T]the attorney's duty not to deceive prohibits him from making a friend request even
of unrepresented witnesses without disclosing the purpose of the request. Represented parties shouldn't
have 'friends' like that and no one - represented or not, party or non-party - should be misled into
accepting such a friendship." (San Diego Op. 2011-2 at p. 13.)
Friending Judges
It may seem impressive for a lawyer's Facebook page to show a number of local judges as "friends."
However, a judge must consider serious issues before accepting a counsel's friend request to connect via
Facebook. The request can be transmitted easily enough, but any judge who thinks about accepting the
invitation must abide by California's Judicial Canons of Ethics.
California is among just a handful of states that have publicly issued ethics opinions on this issue. (See
Cal. Judges Ass'n Judicial Ethics Comm., Op. 66 (available at www.caljudges.org).) The California
opinion provides a concise discussion of judges' involvement in online social networking communities.
Recognizing the realities of modern online communication, the opinion states that a judge may indeed