May I “Friend” an Unrepresented Person on Social Media to Gather Information to Help My Client?

Facebook Friend Request Accepted

A June 2013 ethics advisory opinion from the New Hampshire Bar Association Ethics Committee advises against a lawyer “friending” a nonparty witness if the lawyer “omit[s] identifying information” from the request.  The committee opined that such an omission “may mislead the witness.” See New Hampshire Bar Ass’n Ethics Comm. Op. 2012-13/5 (opinion that such conduct would violate Rules 4.1 and 8.4(c)). Ethics opinions from other jurisdictions have given similar full-disclosure advice. See Philadelphia Ethics Op. 2009-2 (2009); San Diego County Ethics Op. 2011-2 (2011).
In my view, Louisiana would not require as much disclosure. Louisiana Rule 4.1 prohibits a lawyer from “making a false statement of material fact or law to a third person.” Furthermore, in dealing with an “unrepresented person,” Louisiana Rule 4.3 provides that a lawyer “shall not state or imply that the lawyer is disinterested,” and must make “reasonable efforts” to correct any misunderstanding that the person might have about the “the lawyer’s role in a matter.” Thus, a Louisiana lawyer must not lie to anyone as to his identity or purpose in making a friend request on social media. Further, the lawyer must make efforts to affirmatively correct any misunderstandings the would-be friend may have about the the lawyer’s loyalties. Beyond that, there is no requirement that a lawyer Mirandize a would-be friend in the course of making the friend request.
The takeaway? A Louisiana lawyer may make a friend request to an unrepresented person, but the lawyer can’t lie or mislead. If the lawyer’s would-be friend is confused as to the lawyer’s role, the lawyer must correct the confusion. As to the propriety of making such a request to a represented person, Rule 4.2 would prohibit any friend requests whatsoever if the friend request relates to a matter on which the would-be friend is represented by counsel.
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