In the course of litigation, an attorney may wish to investigate opposing parties, witnesses, judges, and jurors. The ubiquitous use of social media presents another tool to learn about the subject of investigation. But what, if any, limitations do ethics rules place on lawyers (and those acting on their behalf) when viewing a person’s social media accounts?
While the opinion addressed a variety of “ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges,” Habte focuses on the opinion’s discussion about “repetitive viewing” of jurors’ and other trial participants’ social media profiles, noting that
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.
The Colorado opinion states that an attorney may view public portions of a juror’s social media profile, even if the the juror may receive information concerning the individual who viewed the profile. That said, the Colorado committee said there are limits.
There could be instances where a lawyer sought to take advantage of the fact that an individual will receive notice of whom is viewing his or her profile. The Colorado committee explained that
The American Bar Association (Formal Op. 466) and several other ethics panels have issued opinions discussing lawyers’ use of social media to investigate jurors and potential jurors. Trial and litigation lawyers would be well advised to give these opinions a review.