NextGen Lawyer Facebooking Opposing Party

facebooking opposing partyIt’s been a while since we checked in with Ali, our Millennial attorney.  Ali, you may recall, just graduated from law school and decided to start up her own law practice in her parents’ basement. Despite Ali’s belief that the Internet is the cure to all of her ills, it turns out that her in-person networking resulted in her first client!  An attorney Ali met at a bar association meeting has a friend in need of an employment attorney.  He recommended Ali to the friend.  So what’s the friend’s dilemma?

Her name is Tamara; she’s seven months pregnant.  Two months ago, Tamara’s boss, Jamal, called Tamara into his office and told her that she was being fired.  Tamara was shocked – she had never had a negative performance review and had no warning that this would happen.  Her co-workers have told her that Jamal fired her because she was pregnant.

Ali files suit against Jamal on Tamara’s behalf. Throughout discovery and pre-trial, Jamal’s attorney has repeatedly told Ali that Jamal has no biases against pregnant women. However, Ali’s heard that Jamal has Facebook posts that indicate his dislike for women workers and especially pregnant women workers. Tamara will also be a single mother, and Jamal apparently also has written a long diatribe against single mothers.

May Ali access Jamal’s social media profile to impeach Jamal?

If Ali does not “friend” Jamal but instead relies on public pages posted by Jamal that are accessible to all Facebook members, then there is no problem. Obtaining information about a party available in the Facebook profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is permitted.

May Ali send a “friend” request to Jamal?

Ali may not. Jamal is represented by counsel.  Sending a “friend” request to Jamal would constitute a communication with a represented party for the purposes of Illinois Rule of Professional Conduct (RPC) 4.2.  “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.”

When a Facebook user clicks on the “Add as Friend” button next to a person’s name without adding a personal message, Facebook sends a message to the would-be friend that reads: “[Name] wants to be friends on Facebook.”  A friend request is at least an indirect ex parte communication with a represented party for purposes of RPC 4.2.

The harder question is whether the statement Facebook uses to alert the represented party to the attorney’s friend request is a communication “about the subject of the representation.”  The context in which that statement is made and the attorney’s motive in making it matter.  Given what results when a friend request is accepted, the statement from Facebook to the would-be friend could just as accurately read: “[Name] wants to have access to the information you are sharing on your Facebook page.” If the communication is motivated by the quest for information about the subject of the representation, the communication is about the subject matter of that representation.

Here’s another interesting wrinkle in that matter – can Jamal’s attorney tell Jamal, or at least strongly suggest to Jamal, that he get rid of these incriminating Facebook posts?  Read our blog post from last week that addresses this issue.

Ali decides not to friend Jamal to access his private Facebook posts.  However she thinks that there might be other ways to impeach Jamal or his witnesses through social media. How will she do it?  Find out next time.

Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism

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Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism

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