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Aug. 21 — An attorney exploring a potential legal claim against an unrepresented person can make a “friend” request to access that individual's private social media profile, but “only when the lawyer has been able to send a message that discloses his or her identity [as an adverse] party's lawyer,” the Massachusetts bar's ethics panel has advised.
The opinion acknowledges that other bar panels have drawn different lines in delineating the ethical boundaries that apply when lawyers ask unwitting litigation targets to reveal potentially inculpatory evidence on social media websites.
It specifically rejected an Oregon panel's determination that so long as a lawyer uses her real name—rather than an alias—in sending a “friend” request to an unrepresented adversary, the lawyer need not affirmatively identify herself as an attorney or disclose the reason for her contact. See Oregon Ethics Op. 2013-189, 29 Law. Man. Prof. Conduct 189 (2013).
The committee also rejected a suggestion by the New York City bar's ethics committee “that the lawyer's identification message may be contained in a ‘profile' created on the lawyer's personal social media page.” New York City Ethics Op. 2010-2, 26 Law. Man. Prof. Conduct 607 (2010).
The Massachusetts panel determined that a lawyer who “friends” a client's putative adversary on a social media website, without affirmatively disclosing the reason for that request, “would be engaging in deceit forbidden by Rules 4.1 and 8.4(c)” of the Massachusetts Rules of Professional Conduct.
The committee further concluded that such disclosure is mandated by Rule 3.4(a), which provides that a lawyer working on a matter for a client may not “imply that [she] is disinterested” when dealing with an unrepresented person.
The committee placed particular emphasis on the second sentence in Rule 3.4(a), which states: “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.”
That language, the opinion states, militates against the Oregon bar panel's conclusion that “the burden should be the unrepresented party to ask about the inquirer's purpose rather than on the lawyer to disclose her identity and/or purpose.”
The committee said a lawyer's obligation under Rule 3.4(a) to clarify any misunderstanding about her role, and practical considerations about how social media users interact, also suggest that the New York City bar panel erred in finding that a lawyer need only identify herself on her personal social media page, rather than in a specific message that accompanies a friend request.
“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 committee explained.
“The lawyer's message must accompany the ‘friending' request in order to avoid the very real possibility that the recipient will be deceived,” it added. “Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself.”
Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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