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Spring 2015 // Journal of American Law 13 reason for the request. As a practical matter, such a disclosure would likely result in the individual rejecting the request. Un- der Model Rule 4.2, an attorney representing a client shall not communicate about the subject of representation with a per- son the lawyer knows has representation. 25 Te attorney must seek the consent of the party's attorney frst. Clients as investigators If ethical rules bar a lawyer from engaging in certain conduct, the lawyer cannot circumvent the rules by using an investiga- tor. Te question of whether a client may friend witnesses or opposing parties is more difcult. If a client's behavior falls outside the purview of ethical rules, attorneys might exploit that loophole by using their clients as investigators. Te issue is more complicated in light of the ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 11-461, "Advising Clients Regarding Direct Contacts with Represented Persons." 26 Te committee explained that the reason for the no-contact rule is to prevent lawyers from over- reaching and interfering with the attorney-client relationship. However, Comment 4 to Model Rule 4.2 afrms that "[p]arties to matter may communicate directly with each another, and a lawyer is not prohibited from advising a client concerning a communication the client is legally entitled to make." 27 Te committee asserted that a lawyer may give substan- tial assistance to a client, including topics to be addressed and strategies to be used. Te advice may be given regardless of whether the lawyer or the client conceived of the idea of hav- ing the communication. Te committee cautioned that the line between permissible advice and impermissible assistance must be drawn on the basis of whether the lawyer is attempt- ing "to circumvent the basic purpose of Rule 4.2, to prevent a client from making uninformed or otherwise irrational deci- sions as a result of undue pressure from opposing counsel." Te opinion proved controversial. Some critics argued that it essentially gave lawyers permission to "script" conver- sations between the client and the represented opposing par- ty. 28 Tis potentially could include preparing documents for the client to deliver to the opposing party directly, which the opposing party might sign before consulting with counsel. Bearing this opinion in mind, the New Hampshire Bar Association Ethics Committee determined that the answer to the question on whether a client may friend a represented party depends on the extent to which the lawyer directed the client's actions. 29 Te New Hampshire Bar reasoned that eth- 25 Model Rules of Prof'l Conduct R. 4.2 (2013). 26 ABA Standing Comm. on Ethics & Prof 'l Responsibility, Formal Op. 11-461 (2011). 27 Model Rules of Prof'l Conduct R. 4.2 cmt. 4 (2013). 28 James Podgers, On Second Tought: Changes Mulled Re ABA Opinion on Client Communications Issue, ABA Journal (Jan. 1, 2012). 29 New Hampshire Bar Ass'n Ethics Comm., Advisory Op. 2012- 13/05. ical rules prohibit a lawyer from accomplishing through an intermediary what would otherwise be unethical and a client falls under ethical rules to the extent that the client acts as an agent of the attorney. Te lawyer must advise the client to avoid conduct on the lawyer's behalf that would be unethical. Without directly weighing in on the controversy surrounding Opinion 11-461, the New Hampshire Bar cited the opinion to illustrate that a client may independently contact the oppos- ing party and share information with the lawyer. If the client has a Facebook account, the account reveals the client's identi- ty to the target, and the target accepts the friend request, then no rule prohibits the client from divulging to the lawyer any information gained in that way. Privacy Settings A corresponding issue concerns the advice a lawyer may give to a client about protecting the content on the client's social media pages. It is not debated that an attorney ethically may advise a client not to make new posts to social media in antic- ipation of or during litigation. Dealing with information the client has posted already is a closer question. Many social net- working services allow for users to limit access to certain post- ed content to individuals selected by the user. Services also generally allow for users to remove their own content afer it has been posted. Tese features raise questions concerning Model Rule 3.4 Fairness to Opposing Counsel, 30 which for- bids lawyers from unlawfully obstructing an opposing party's access to evidence. Te Philadelphia Bar Association Advisory Opinion 2014-05 addressed the question of adjusting security settings on Facebook. 31 Facebook allows users to regulate what con- tent from the user's profle is visible to the general public and what is visible only to friends. Te committee suggested that a lawyer may advise a client to change the privacy settings on a client's Facebook page to limit public access. However, it is not permissible to delete previously posted information or photographs. Te North Carolina State Bar is in agreement. 32 Te North Carolina State Bar recommended that attorneys advise clients of the legal ramifcations of existing social media postings. While a lawyer cannot instruct a client to delete postings, the lawyer can advise the client to adjust the security and privacy settings on a social media account both before and afer a suit has commenced. While restricting access through privacy settings could make it more cumbersome for an opposing party to obtain the desired information, it does not violate Rule 3.4 Fairness to Opposing Party and Counsel. 33 Engaging privacy protections does not place content beyond reach forever. 34 Te opposing 30 Model Rules of Prof'l Conduct R. 3.4 (2013). 31 Philadelphia Bar Ass'n Comm. on Prof 'l Guidance, Op. 2014-5 (2014). 32 Te North Carolina State Bar Ass'n, Formal Ethics Op. 5 (2014) 33 Model Rules of Prof'l Conduct R. 3.4 (2013). 34 Patterson v. Turner Const. Co., 931 N.Y.S.2d 311, 312 (N.Y. App.