Ezel / Ethics Opinions / MBAR
MBAR May 8, 2014

Can a lawyer send a Facebook friend request to an unrepresented opposing party to see their nonpublic posts?

Short answer: Only if the request discloses that the sender is the party's lawyer. The opinion holds that friending an unrepresented adversary without revealing the lawyer's identity and role would be a misrepresentation under Rules 4.3, 4.1, and 8.4(c).

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This page answers the general question as of 2014. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2014
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer asked whether she could request access to nonpublic information on a potential adverse party's Facebook page to find information relevant to contemplated litigation, where that party was unrepresented. The opinion concludes she may do so only if she discloses her identity and role as the party's lawyer in the request.

The opinion begins from the fact that the adverse party is unrepresented and applies Rule 4.3, which bars a lawyer dealing with an unrepresented person from stating or implying that the lawyer is disinterested and requires the lawyer to correct any misunderstanding of the lawyer's role. The committee ties this to the broader prohibition in Rule 4.1(a) against making a false statement of material fact to a third person and to Rule 8.4(c), which bars conduct involving dishonesty, fraud, deceit, or misrepresentation.

Applying these rules, the opinion concludes it is not permissible for the lawyer to ask the unrepresented party to "friend" her without disclosing that the requester is the lawyer for a potential plaintiff. Sending such a request without disclosure would, in the committee's view, imply a neutral or personal relationship that the lawyer does not have, which the opinion treats as the kind of misrepresentation Rules 4.3, 4.1, and 8.4(c) forbid.

In practice

Under this opinion, conduct in which a lawyer seeks access to an unrepresented adversary's nonpublic social-media content is permitted only if the lawyer's friend request discloses the lawyer's identity and role as counsel for a party. The opinion grounds that condition in Rule 4.3's bar on implying the lawyer is disinterested and on the general candor rules in 4.1(a) and 8.4(c).

The opinion addresses the unrepresented-party scenario specifically; it analyzes the request as a communication that would imply a misleading relationship if the lawyer's role were concealed.

Common questions

Q: Can a lawyer just send a friend request to an opposing party to read their private posts?

A: Not without disclosure. The opinion concludes that friending an unrepresented adversary without revealing that the sender is the party's lawyer would imply a relationship the lawyer does not have, contrary to Rules 4.3, 4.1(a), and 8.4(c).

Q: What makes the conduct permissible?

A: Per the opinion, the lawyer may send the request only when it discloses the lawyer's identity and role as the party's lawyer, so the unrepresented person is not misled about who is asking.

Q: Which rules drive the analysis?

A: The opinion relies on Rule 4.3 (dealing with unrepresented persons), Rule 4.1(a) (truthfulness to third persons), and Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation).

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 4.3 (dealing with an unrepresented person), Rule 4.1(a) (truthfulness in statements to others), and Rule 8.4(c) (misconduct involving misrepresentation). These correspond to the like-numbered ABA Model Rules. The opinion applies them to a social-media investigation of an unrepresented adverse party.

Citations and references

Rules of Professional Conduct:

  • MR 4.3 / Mass. R. Prof. C. 4.3 (dealing with unrepresented persons)
  • MR 4.1 / Mass. R. Prof. C. 4.1(a) (truthfulness to third persons)
  • MR 8.4 / Mass. R. Prof. C. 8.4(c) (dishonesty, fraud, deceit, misrepresentation)

See also

Source

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