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

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.