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

Winter 2016

In September 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 matter.

First, 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.”

Ethics 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.

The American 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.

For more 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.