Ethics of listserv communications

How much can you say on a listserv?

In a discussion amongst family law lawyers on a listserv, I just ran across one of the more interesting questions. The facts, as I understand them, are that a request for an expert was made on a listserv; a recommendation was made in response; and then a third comment criticized the referred expert. Participating on the listserv, though quiet during this interchange, was a judge before whom the case was to have been heard the following week!

Is this an ex parte communication?

The Los Angeles County Bar Association, in its Formal Opinion, No. 514, dated August 15, 2005, issued its opinion on the matter.

The opinion concludes that “… Since one can never know who might read or react to email posted on the Internet, and because it is likely that judges will be included in Listservs or other open communication lists, it is incumbent upon attorneys to avoid including any confidential or private information in a Listserv or other Internet posting that could be identified to a particular case or controversy.”

Thus, the criticism should have been rendered “off-line” since it’s quite likely that judicial officers will participate in specialty listservs.

Was this an ex parte matter? No, but it was like a letter to the editor. Communications must not reveal facts about a matter that are intended to be confidential or that would impact the matter.

Common sense is always good!

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