20090003 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20090003

Rules: 4–4.2

Transactions With Persons Other Than Client

Communication With Person Represented by Counsel

Subject: Communication with Represented Persons

Summary: communication with represented person via social networking

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 dash–4.2. Attorney may not send such a communication directly to plaintiff, in light of that rule.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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