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By Samson Habte
Nov. 17 — Lawyers who investigate jurors and opposing parties online may cross the ethical line if they engage in “repetitive viewing of an individual's social media profile” with knowledge that “the other person would receive notice each time the lawyer viewed the profile,” the Colorado bar's ethics committee has cautioned (Colo. Bar Ass'n Ethics Comm., Op. 127, 9/15).
The opinion addresses a range of “ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information [about] witnesses, jurors, opposing parties, opposing counsel, and judges.”
Its observations about “repetitive viewing” of jurors' and other trial participants' social media profiles are noteworthy because that issue has not received much attention in other opinions.
Bar groups are divided on the question of whether lawyers violate ethics rules when they view the public profiles of jurors, judges or represented persons on social media platforms—such as LinkedIn—that automatically alert users to the fact that their profiles have been viewed.
Some ethics committees have said such notifications may constitute “communications,” and that passive browsing may thus violate state variants of ABA Model Rule 3.5(b) (ex parte contacts with judges and jurors), Model Rule 4.2 (communications with represented persons) and Model Rule 4.3 (communications with unrepresented persons).
The Colorado panel disagreed with those opinions, rejecting the view “that it is proper for a lawyer to view a juror's social media profile only so long as the juror remains unaware that such investigation is occurring.”
Passive review of a social media profile is not “communicating” merely because “a technical feature” of the service alerts users to hits on their profiles, the committee said, adopting the reasoning in ABA Formal Ethics Op. 466, 30 Law. Man. Prof. Conduct 292 (2014).
A “lawyer might take improper advantage of the fact that a particular individual will receive automatic notification that the lawyer or someone on the lawyer's behalf viewed the individual's social media profile,” the committee said.
That scenario, the committee said, could implicate Colorado Rule of Professional Conduct 4.4(a), which provides that in representing a client a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person.
“[R]epetitive viewing of an individual's social media profile could potentially violate Colo. RPC 4.4(a) if the lawyer knew the other person would receive notice each time the lawyer viewed the profile, the lawyer had no other legitimate purpose for the repetitive viewing, and the repetitive viewing rose to the level of harassment or intimidation,” the committee said.
However, “To constitute a violation of the Rules, this would have to be an extreme situation, and it would be an exception to the general opinion expressed herein.”
A review of authority by Bloomberg BNA indicates that only two ethics panels have expressly disagreed with the ABA's view that “passive” browsing of a social media profile doesn't amount to contact or communication even when the account holder receives notice of the activity.
Both dissents emanated from New York. See New York City Formal Ethics Op. 2012-2, 28 Law. Man. Prof. Conduct 381 (2012), and New York County Ethics Op. 743, 27 Law. Man. Prof. Conduct 473 (2011).
Shortly after the ABA issued its opinion, three members of the New York State Bar Association's Social Media Committee wrote a public letter detailing their concerns about “passive review” of jurors' social media profiles.
“In this age of limited digital privacy, we believe that social media interactions between jurors and lawyers should not occur and the ABA opinion does not sufficiently seek to ensure that this prohibition does not occur,” the New York bar letter stated.
“Receiving multiple notifications indicating that individuals from a law firm or investigative agency are poring over one's social media profile surely would be disconcerting to most jurors, at best, and could result in a mistrial,” it said.
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