Ethics Opinions

Opinion 2014-5

May 2014

Summary: A lawyer for a party may "friend" an unrepresented adversary in order to obtain information helpful to her representation from the adversary's nonpublic website only when the lawyer has been able to send a message that discloses his or her identity as the party's lawyer.

Facts: A lawyer inquires whether she may directly request access to "non-public information" on a potential adverse party's social networking site (Facebook) to attempt to ascertain information relevant to contemplated litigation when the opposing party (X) is at present unrepresented.

Discussion: We begin our analysis with the reported fact that X is unrepresented. Rule 4.3 provides that "(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." We will assume that as of the moment the inquirer does not know that X has counsel. Rule 4.3 states that a lawyer shall makes a reasonable effort to correct any misunderstanding of an unrepresented party with whom the lawyer is dealing concerning the lawyer's role. This requirement seems derived from the more general proposition contained in Rule 4.1(a) that "[i]n the course of representing a client a lawyer shall not knowingly. . . " make a false statement of material fact or law to a third person." Rule 8.4(c) makes the same point even more broadly: "It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation . . . .

In the Committee's view, it is not permissible for the lawyer who is seeking information about an unrepresented party to access the personal website of X and ask X to "friend"[1] her without disclosing that the requester is the lawyer for a potential plaintiff. In so doing, the lawyer would be engaging in deceit forbidden by Rules 4.1 and 8.4(c). See Philadelphia Bar Association Opinion 2009-2 and San Diego County Bar Association Legal Ethics Opinion 2011-2. Moreover, this is a situation where not only is X likely to misunderstand the lawyer's role but also one where the lawyer has enabled the misunderstanding. See New Hampshire Advisory Ethics Opinion 2012-13/05. We do not agree with the conclusion of the Oregon Ethics Committee in its Opinion No. 2013-189 that the burden should be on the unrepresented party to ask about the inquirer's purpose rather than on the lawyer to disclose her identity and/or purpose. We believe that it is permissible to "friend" X in this situation in order to access nonpublic information only when the lawyer has been able to send a message that discloses her identity as the plaintiff's lawyer. Facebook, LinkedIn and other social media sites allow the invitation to include a message. We also do not agree with the suggestion in Formal Opinion 2010-2 of the New York City Bar Association's Committee that the lawyer's identification message may be contained in a "profile" created on the lawyer's personal social media page. It is well known that "friending" requests are often granted quite casually, and viewing the invitee's profile is not necessarily a mandatory step in accepting a "friend" request. The lawyer's message must accompany the "friending" request in order to avoid the very real possibility that the recipient will be deceived. Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself.

It is incumbent on the inquiring lawyer to keep in mind, however, that at some point she may learn that in fact X has come to be represented by counsel. At such point, the Rules change and any communication with X becomes subject to the prohibition contained in Rule 4.2. (As to a lawyer's "knowledge" of representation, see Rule 4.2, Comment 5.) Rule 4.2 provides that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." This Opinion does not address any issues relating to social media when the restrictions of Rule 4.2 are involved.

This Opinion addresses only the factual situation described herein and is not meant to advise with respect to other hypothetical situations involving access to social networking sites.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 8, 2014.

[1] For simplicity, we refer to Facebook/Instagram terminology, but the Committee's view applies equally to connecting on LinkedIn and other similar social media.