Having recently been “friended” by my teenage niece on Facebook, I had the chance to see what she was up to and who else her “friends” were (close to 200 of them). But when I tried to play a video link on her page, my McAfee lit up like the Fourth of July. I did not personally know the “friend” who left this loaded link on her page, and I’m not sure she did either.
Whereas a teenage girl’s overblown “friending” might be excusable, careless or unethical friending by legal professionals is not so forgivable. As reported by Julie E. Bennett in this week’s Minnesota Lawyer, social networking is useful (perhaps necessary) for today’s practitioner, but also loaded with potential ethical hazards. It may be tempting to “friend” an opposing party or witness for purposes of viewing their otherwise publicly unavailable social networking page for relevant information. This kind of “friending” may run counter to MRPC Rule 4.2, which forbids a lawyer communications regarding the subject of representation with a person who is known to be represented by another lawyer without that lawyer’s consent. “Friending” an unrepresented party could also violate MRPC Rule 4.3, which requires a lawyer to clearly indicate their role and partiality in the communication. Using a fictitious identity or an employee to gain access to a social networking page for such purposes also violates MRPC Rules, and possibly criminal statutes as well.
…Looking at it from the other direction, safe and prudent practice would require a lawyer to be hyper-cautious of any social networking “friend” requests they might receive, and should warn clients (both potential and retained) to likewise be cautious.
