The Ethics Committee of the Colorado Bar Association issued a formal opinion to provide guidance to the increasing number of lawyers who may be tempted to use social media such as Facebook, Twitter, LinkedIn, and YouTube to obtain information concerning opposing parties, witnesses, opposing counsel, potential jurors, seated jurors, and/or judges, advising generally as follows:

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 an unrepresented party or unrepresented witness unless and until the lawyer identifies himself or herself as a lawyer, and discloses the general nature of the matter in which the lawyer represents the client.

With respect to represented parties, 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 counsel.

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.

With respect to judges, 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.

With respect to potential jurors and/or jurors, a lawyer may not request permission to view a restricted portion of a social media profile or website of a prospective or sitting juror.

Finally, a lawyer must never use any form of deception to gain access to a restricted portion of a social media profile or website. And may not avoid prohibitions relating to the use of social media for investigative purposes by delegating investigative tasks to others.

 

Colorado Bar Association Formal Ethics Opinion No. 127 (Sept. 2015).

(re Prospective Jurors and Jurors, see also: ABA Formal Opinion No. 466  (April 24, 2014))