May defense counsel send a social-network friend request to a represented plaintiff to view the plaintiff’s posts?

Plain-English summary

A defense lawyer in a personal-injury case wanted to access the represented plaintiff’s social-network posts. The proposal was to create an account and ask the plaintiff directly to accept a friend request.

The opinion says the friend request is a communication for Rule 4-4.2 purposes. Because the plaintiff is represented, the lawyer may not send that request directly to the plaintiff.

In practice

The opinion applies the represented-person contact rule to the proposed social-network friend request sent directly to the plaintiff.

Common questions

Q: Is a friend request a communication under Rule 4-4.2?

A: Yes. The opinion expressly treats the request to join the plaintiff’s Facebook or MySpace account as a communication.

Q: May the defense lawyer send the request directly?

A: No. The opinion bars sending it directly to the represented plaintiff.

Q: Why did the lawyer want access?

A: The lawyer sought posts allegedly damaging to the plaintiff’s personal-injury case.

Background and rules framework

Rule 4-4.2 governs direct communication with a person known to be represented. The opinion applies it to the proposed Facebook or MySpace friend request.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-4.2

See also

• Missouri Informal Op. 2011-03: Contact with Represented Parents
• Missouri Informal Op. 2026-02: Contact with Represented Spouse

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20090003/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION: Attorney represents Defendant in a personal injury case. Plaintiff maintains an account on a social networking site such as MySpace or Facebook. Plaintiff is allegedly making statements on the social networking site that would hurt Plaintiff’s case. A third party witness is unwilling to print said information off of the networking site. Can Attorney create an account on the social networking site and send a message to Plaintiff asking to be invited as Plaintiff’s friend? After being accepted as Plaintiff’s friend Attorney would have access to Plaintiff’s statements. Plaintiff is represented by counsel. If Attorney created an account on a social networking site and asked Plaintiff to be invited as a friend what ethical problems arise? Would said contact constitute communication with a person known to be represented?

ANSWER: Attorney’s request to be invited as a friend of Plaintiff’s Facebook/MySpace account would be a “communication” for purposes of Rule 4–4.2. Attorney may not send such a communication directly to plaintiff, in light of that rule.