Los Angeles County Bar Association Opinion 2005-514

Professional Responsibility and Ethics Committee

Topic: Lawyers’ participation in listserv communications and chat rooms –

“Do lawyers participating in e-mail communications with a listserv or ‘chat room’ risk  engaging in improper ex parte communications if judges in front of whom the lawyers may appear also have access to that same information?”

Summary of the opinion (by the Committee):

Listserv communications present the possibility for ex parte communications between lawyers and judicial officers who are involved in a case.  Inadvertent contact, in that context, likely violates no ethical proscription; and, too, lawyers may rely upon the independent duties of judges to avoid such ex parte contacts. Regardless, however, problems could still arise depending upon the communication’s nature, or an unintended recipient’s response. Since attorneys must always remain mindful of their duties to protect confidential client information, and one never knows who might read or react to e-mail posted to a listserv, attorneys should avoid including information in listserv postings identifiable to particular cases or controversies.

From the opinion:

Listserv is “a public or semi-public, non-confidential forum for the exchange of e-mail.” “A chat room is a place on the Internet where people with similar interests can meet and communicate…”

 

CASES

Bell v. Staacke (1911) 159 Cal. 193; Durbin v. State Bar (1979) 23 Cal.3d 461; Edwards v. State Bar (1990) 52 Cal.3d 28; Fellows v. Superior Court (1980) 108 Cal.App.3d 55; Hamilton v. State Bar (1979) 23 Cal.3d 868, 87; In re Jonathan S. (1979) 88 Cal.App.3d 468; In re Jordan (1972) 7 Cal.3d 930; Izazaga v. Superior Court (People) (1991) 54 Cal.3d 356; King v. State Bar (1990) 52 Cal.3d 307; McKesson HBOC, Inc. v. Superior Court (State of Oregon) (2004) 115, Cal.App.4th 1229; McKnight v. State Bar (1991) 53 Cal.3d 1025; U.S. v. Councilman (1st Cir. Aug. 11, 2005) 2005 WL 1907528; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883; Zaheri v. New Motor Vehicle Board (1997) 55 Cal.App. 4th 1305

 

STATUTES

Bus & Prof Code §§ 5499.30, 6068, 6158, 6158.3

Code of Civ. Proc. §§1281.85, 1899, 2018

Evidence Code § 952

18 USCA § 2517

 

CALIFORNIA RULES OF COURT

Rule 379, 955

Appendix, Div VI, Ethics Standards for Neutral Judges in Contractual Arbitration

 

CALIFORNIA RULES OF PROFESSIONAL CONDUCT

Rule 1-710; Rule 5-300

 

CALIFORNIA CODE OF JUDICIAL ETHICS

Canon 2A; 4; 4B; 6D

 

ABA/LOCAL BAR ETHICS OPINIONS

Formal Opinion No. 99-413 of the American Bar Association

Formal Opinion No. 97-002 of the Orange County Bar Association

 

ABA ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT

Rule 3.5

 

The full text is available at http://www.lacba.org…