Colorado Supreme Court
Office of Attorney Regulation Counsel
Promoting Professionalism. Protecting the Public.
CBA releases ethics opinion about social media
You don’t need to be an expert on new
technology to know how to handle it in your practice. The same Rules of
Professional Conduct apply.
By KATRIN MILLER ROTHGERY
2015, the Colorado Bar Association’s Ethics Committee issued Formal Ethics Opinion 127: Use of Social
Media for Investigative Purposes. The Opinion analyzes the ethical
implications of a lawyer’s use of social media as part of his investigation of
a case, including gathering information about witnesses, judges, jurors,
opposing parties, and/or opposing counsel. The Committee’s advice is consistent
with the Office of Attorney Regulation Counsel’s historic position on the
information that is public may be gathered freely and used in any manner
allowed by law or by the Colorado Rules of Professional Conduct. Second,
information that is not public, protected by a user’s privacy setting or
otherwise restricted from public view, can be gathered only when the lawyer has
complied with the requirements of Colo. RPC 4.2 (concerning direct contact with
represented parties), Colo. RPC 8.4(c) (prohibiting dishonest conduct), Colo. RPC
3.5 (prohibiting ex parte contacts with a judge or juror), and other applicable
Rules. A lawyer who wants to “friend” someone on Facebook to gain access to
non-public information relevant to a case the lawyer is handling can make that
request only when she has properly identified herself as a lawyer, representing
a specific client, working on a specific case. And, importantly, having a
paralegal make the “friend” request is not an acceptable way to circumvent the
Rules; Rule 8.4(a) prohibits a lawyer from violating the Rules of Professional
Conduct “through the acts of another.”
Opinion 127 does not address a lawyer’s use of social media for marketing or
for personal use. It also does not analyze whether
lawyers need to familiarize themselves with, or become proficient in using,
social media in order to maintain professional competence required by Rule 1.1.
These are important considerations that are being discussed in various CLEs and
in ethics circles nationally.
Bar Association is hosting a webinar in March entitled “Are You Plugged In? The Ethical
Dangers of Technology in the Legal Practice.”
If social media is an integral part of your practice,
you should consider attending.
information on lawyers’ use of social media, read “New Tools, Same Rules” in the Summer
2013 edition of the OARC Update.
Katrin Miller Rothgery is Assistant Regulation
Counsel in the trial division in the Office of Attorney Regulation Counsel.