Can a Colorado lawyer view someone's social media or send a friend request to investigate an opposing party, witness, juror, or judge?
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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 127 (adopted September 2015 and revised May 2019) addresses how lawyers may use social media to investigate witnesses, opposing parties, opposing counsel, jurors, and judges. The Committee distinguishes the "public" portion of a profile (viewable by anyone, or anyone in the network) from the "restricted" portion (viewable only with the user's permission). Viewing public content is always permitted and is treated like any other public information; it is not a "communication," so the no-contact and ex parte rules (Rules 4.2, 4.3, 3.5) are not triggered, even where the platform automatically notifies the person that the lawyer viewed the profile (the notice comes from the service, not the lawyer). The opinion notes a narrow caveat that repetitive viewing intended only to harass could implicate Rule 4.4(a).
Accessing restricted content, by contrast, requires a communication (a "friend request" or similar), and the rules then vary by the target's status. For an unrepresented party or witness, the lawyer may request access only with sufficient disclosure to allow an informed decision: the lawyer's name, that the lawyer acts for a client, and the general nature of the matter (and the client's identity where needed to avoid a misunderstanding). The Committee agrees with the New Hampshire view that requesting access while disclosing only that one is a lawyer, without the purpose, can be a misleading omission under Rules 4.1, 4.3, and 8.4(c). For a person the lawyer knows to be represented in the matter, the lawyer may not request access without the represented person's counsel's consent under Rule 4.2, and may not accept a request from, or use a third party or the client to circumvent, that prohibition.
For jurors and judges, the limits are stricter. A lawyer may not request access to a prospective or sitting juror's restricted profile, because that is a communication and any unauthorized communication with a juror during a proceeding is improper under Rule 3.5; after discharge, Rule 3.5(c) still limits contact. A lawyer may not request access to the restricted profile of a judge presiding over the lawyer's case, nor communicate ex parte through social media about a pending matter, under Rule 3.5, and should be cautious about content visible to a judge who shares a network. As to deception, the opinion is categorical: under Rules 8.4(c) and 4.1 and In re Pautler, a lawyer may never personally use a false identity or pretexting to gain restricted access, but, consistent with the Committee's Opinion 136, a lawyer may advise, direct, or supervise others (including investigators or clients) who use deception as part of lawful investigative activities, a fact-dependent legal judgment the opinion says should be approached very cautiously.
In practice
The opinion holds that, under the Colorado rules as they stood at the time of the opinion, viewing public social media is unrestricted, while restricted-access requests are governed by the same communication rules that apply offline. Per the opinion, a lawyer may seek restricted access from an unrepresented party or witness only with disclosure of the lawyer's identity, role, and the general nature of the matter; may not seek restricted access from a represented person without that person's counsel's consent (Rule 4.2); may not seek restricted access from a juror or from a judge presiding over the lawyer's case (Rule 3.5); and may never personally deceive to gain access (Rules 8.4(c), 4.1), although the lawyer may supervise others' lawful investigative deception. The opinion also concludes a lawyer cannot evade these limits by routing the request through a non-lawyer, the client, or another third party.
Common questions
Q: Can I look at an opposing party's or witness's public Facebook or LinkedIn?
A: Yes. The opinion concludes viewing the public portion of anyone's social media is permitted and is not a communication, so the no-contact and ex parte rules are not triggered, even if the platform notifies the person of the view.
Q: Can I send a friend request to an unrepresented witness to see their private posts?
A: Only with disclosure. The opinion concludes the lawyer must provide the lawyer's name, state that the lawyer is acting for a client, and disclose the general nature of the matter, so the person can make an informed decision; omitting the purpose can be a misleading omission.
Q: The opposing party is represented. Can I request access to their private profile?
A: No. The opinion concludes Rule 4.2 bars requesting access to a represented person's restricted profile in the matter without that person's counsel's consent, and the lawyer cannot use a third party or the client to get around it.
Q: Can I view or friend a juror or the judge on my case?
A: No, for restricted access during the case. The opinion concludes requesting restricted access to a juror's or presiding judge's profile is a prohibited communication under Rule 3.5, and the lawyer must avoid ex parte social-media communication about the matter.
Q: Can I use a fake account to get in?
A: Never personally. The opinion concludes that under Rules 8.4(c) and 4.1 and In re Pautler a lawyer may never personally use deception to gain restricted access, though the lawyer may supervise others' deception as part of lawful investigative activities.
Background and rules framework
The opinion interprets Rule 4.2 (communication with represented persons), Rule 4.3 (dealing with unrepresented persons), Rule 3.5 (impartiality and decorum of the tribunal; jurors and judges), Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), Rule 4.1 (truthfulness to third persons), and Rule 4.4(a) (no substantial-purpose harassment), against the backdrop of evolving social media. It builds on the Committee's Opinion 136 (supervising others in lawful investigative activities involving deception) and surveys ABA Formal Ops. 462 and 466 and several state and local opinions.
Citations and references
Rules of Professional Conduct:
- Colo. RPC 4.2 / Model Rule 4.2 (communication with represented persons)
- Colo. RPC 4.3 / Model Rule 4.3 (dealing with unrepresented persons)
- Colo. RPC 3.5 / Model Rule 3.5 (jurors and judges; ex parte communication)
- Colo. RPC 8.4(c) and 4.1 / Model Rules 8.4(c), 4.1 (deception; truthfulness to third persons)
- Colo. RPC 4.4(a) (no substantial-purpose harassment of third persons)
Cases:
- In re Pautler, 47 P.3d 1175 (Colo. 2002), a lawyer may not use deceit even when believing it serves the public interest
Other opinions cited:
- ABA Formal Op. 466 (2014): lawyer reviewing jurors' internet presence
- ABA Formal Op. 462 (2013): judges' use of electronic social networking media
- CBA Formal Op. 136 (2019): supervising others in lawful investigative activities involving deception
- N.Y.C. Bar Op. 2010-2 and 2012-2; San Diego Cnty. Op. 2011-2; N.H. Op. 2012-13/05; Or. Op. 2013-189
See also
- ABA Formal Op. 466: Reviewing Jurors' Internet Presence
- ABA Formal Op. 462: Judges' Use of Electronic Social Media
- NYC Bar Op. 2012-2: Jury Research and Social Media
Source
- Landing page: https://www.cobar.org/ethicsopinions
- Original PDF: https://www.cobar.org/Portals/COBAR/Repository/committees/Ethics/Opinion%20127.pdf
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