May 22, 2014

OK to ‘Friend’ Unrepresented Adversary, Mass. Ethics Panel Says

3 Comments · Posted by Robert Ambrogi in General

A lawyer may ‘friend’ an unrepresented adversary to obtain information for a case, provided the lawyer first discloses the client that he or she is representing, the Committee on Professional Ethics of the Massachusetts Bar Association has ruled.

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.

Although the opinion used the Facebook term of “friend,” the committee said that its opinion applies equally to connecting on LinkedIn and other social media.

The MBA committee is not an official ethics panel in Massachusetts, but its opinions carry persuasive weight. The committee is chaired by Harvard Law School Professor Andrew L. Kaufman.

At issue in the opinion was an inquiry from a lawyer concerning whether she may directly request access to non-public information on a potential adverse party’s Facebook page, in order to look for information pertinent to contemplated litigation, when the potential adversary is not represented by counsel.

Citing Rule 4.3 of the Massachusetts Rules of Professional Conduct, the committee said that friending under such circumstances is permissible only if the lawyer is first able to send a message disclosing the situation.

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.

In reaching this conclusion, the committee disagreed with an Oregon ethics opinion that put the burden on the unrepresented party to ask about the inquirer’s purpose. It also disagreed with a New York opinion that it is sufficient for the lawyer to provide identifying information in his or her profile.

The committee also cautioned that, once the adversary obtains counsel, Rule 4.2 kicks in, governing communications with persons represented by counsel. “This opinion does not address any issues relating to social media when the restrictions of Rule 4.2 are involved,” the committee said.

The opinion is Opinion 2015-5. It was approved May 8 by the MBA’s House of Delegates. It has not yet been posted to the MBA’s website, but is slated to be published here. Below is a scanned copy.

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3 comments

  • Christopher Anderson · May 22, 2014 at 9:13 am

    This is unfortunate. What is the compelling reason to allow attorneys to do something to an unrepresented party that they could not do with a represented one?

    Email, phone call, letter, I understand. The lawyer needs to communicate with the representative of the other side, even if it is the principal. In order to give a modicum of protection to the unrepresented party, I think, at the very least, more should be done then simply identify the attorney. The attorney should also have to disclose what s/he intends to do with information they learn, AND what COULD be done with the information. Not everyone is aware of the consequences of allowing opposing counsel unfettered access to their list of friends, history, etc. Its an unlevel playing field, and that doesn’t feel … just.

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  • Michael Simon · May 22, 2014 at 11:02 am

    First of all, thank you Robert for posting this. I teach eDiscovery Law and Practice at Boston University Law School (along with Diane Barry, who is the eDiscovery attorney at the MA Office of the Attorney General) and we will be using this for our Social Media class session.

    As for the substance of this opinion, I do have some reservations about the lack of specificity and clarity around the requirement that the lawyer “send a message” – what does that mean? Does that mean that the lawyer can send a FaceBook message, something that could easily be missed or lost by the recipient – and even if not deleted, potentially difficult (and thus expensive) to introduce into evidence later if this all goes badly . . . which, of course at some point in some case it will. Aany lawyer who uses a medium, like FaceBook, where they cannot easily control the evidence that they might need to use later to show that they did the right thing is probably being a fool as well.

    And what does that message need to say? While I do not agree with the prior commentator that the attorney should need to identify with specificity what they will do with the info (that seems to go too far, perhaps), but I sure as heck think that the attorney should be required to mention that anything their new friend tells could very well be used in a way that is against their interest. I know that that sounds an awful lot like a “Miranda Warning” for friending, but like the prior commentator, I don’t think that most people will understand exactly how much trouble they could be potentially causing for themselves here.

    Far too many people treat social media as “just fun,” not serious, and ephemeral – yet this is a situation that could have lasting, bad consequences for them. I think of the old Jerry Seinfeld joke about lawyers: “To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.”

    What if the other people don’t even know that they are playing the game . . . and the lawyer is the only one who knows that?

    There is something here that indeed just does not feel right, and that this is going to lead to situations that are going to end badly, very badly, for all concerned.

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  • OK to ‘Friend’ Unrepresented Adversary, Mass. Ethics Panel Says - Legal Marketing News | Legal Marketing News · May 23, 2014 at 1:24 am

    […] See the article at Robert Ambrogi’s LawSites here: OK to ‘Friend’ Unrepresented Adversary, Mass. Ethics Panel Says […]

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