Summary of the Colorado Bar Association Ethics Committee Formal Opinion 127: “Use of Social Media for Investigative Purposes”

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In September 2015, the Colorado Bar Association Ethics Committee (Committee) issued Formal Opinion 127—“Use of Social Media for Investigative Purposes” to address the conflicting ethical opinions from various jurisdictions about how to apply the established ethical principles to the use of social media and social networks as investigative tools. The Committee stated, “In many respects, the ethical issues involved in conducting investigations through social media are neither novel nor unique.”  The committee concluded that:

  • A lawyer may always view the public portion of a person’s social media profile and any public posts made by a person through social media.
  • A lawyer may always view the public portion of a person’s social media profile and any public posts made by a person through social media.
  • A lawyer acting on behalf of a client may not request permission to view a restricted portion of a social media profile or website of a person the lawyer knows to be represented by counsel in that same matter, without obtaining consent from that counsel.

[Note, the Committee stated, “Similarly, a lawyer may view or utilize information to which the lawyer already has access through the lawyer’s social media connections.” This might mean that if the lawyer was already Facebook friends with the represented party before litigation ensued, viewing the restricted portion would not be unethical because the lawyer already had access to it.]

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  • When requesting or obtaining information from a third person who has access to restricted portions of a social media profile or website of a party or witness, a lawyer is subject to the same standards as when requesting any other information in the hands of a third person.
  • A lawyer may not request permission to view a restricted portion of a social media profile or website of a judge while the judge is presiding over a case in which the lawyer is involved as counsel or as a party, nor may a lawyer seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge.
  • A lawyer may not request permission to view a restricted portion of a social media profile or website of a prospective or sitting juror. 

[Note, the Committee stated that if the social media service has a technical feature whereby the social media service automatically communicates to the juror that you viewed their public profile, this would not be considered an impermissible communication by you to the juror. Various jurisdictions disagree with this, but the ABA agrees. However, the Committee stated that this could potentially violate Colo. RPC 4.4(a) if the lawyer knew about the automatic notification, engaged in repetitive viewing of the profile with no legitimate, and it rose to the level of harassment or intimidation.

  • A lawyer must never use any form of deception to gain access to a restricted portion of a social media profile or website. 

The Committee, explained, “As stated in an article in the Colorado Supreme Court Attorney Regulation Counsel Newsletter, "donning an alias and ‘friending’ someone on Facebook to gain access to restricted information is prohibited."]

  • Finally, a lawyer may not avoid prohibitions relating to the use of social media for investigative purposes by delegating investigative tasks to others.

[Note: The Committee recognizes that, “A lawyer may advise a client concerning the client’s legal rights to access a restricted portion of a social media profile or website. Also, consistent with Colo. RPC 4.2, a lawyer may advise a client concerning direct communications through social media that the client is legally entitled to engage in with another party the lawyer knows to be represented by counsel. See Colo. RPC 4.2, cmt. [4]. However, a lawyer may not simply use the client as a means of communicating directly with a represented party in circumvention of Rule 4.2. See also Colo. RPC 8.4(a).”]

To read the full opinion, see: http://linkon.in/cobarsminvest127.

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