Facebook Friending An Unrepresented Party When Contemplating Litigation? Massachusetts Says Okay to Connect with Identity and Purpose

The Massachusetts Bar Association recently advised that a lawyer seeking to investigate an unrepresented party’s social networking site for information that may assist the lawyer in advising his client prior to initiating litigation, may do so—if the lawyer identifies himself as the adverse party’s lawyer. In its Ethics Opinion 2014-5, the Massachusetts Bar concluded that where a potential adverse party is unrepresented, a lawyer may “friend” the party directly, and gain access to the party’s “non public information” as long as the lawyer discloses that he is the lawyer for a potential plaintiff in the matter in a message. Though the Opinion references Facebook and Instagram terminology, it indicates that, “the Committee’s view applies equally to connecting on LinkedIn and other similar social media.”

The Opinion, in accordance with Rule 4.3 of the Massachusetts Rules of Professional Conduct, which prohibits lawyers from implying to unrepresented parties that they are disinterested and requires them to make reasonable efforts to correct misunderstandings, imposes an affirmative duty on lawyers to disclose the reason for their request at the time of the request. The Opinion rejects decisions by other bar panels on this topic, including an Oregon opinion that places the burden on the unrepresented party to ask about the inquirer’s purpose, and a New York opinion that allows the lawyer’s identification message to be posted on the lawyer’s personal social media page.

The Massachusetts Ethics Opinion’s message is clear: lawyers wishing to avoid engaging in deceit must send their identification message notice with the request “to avoid the very real possibility that the recipient will be deceived.”

To read more click here, for the full text of the Opinion click here.

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