Is looking harassment?

Dedicated readers know that I’ve written on tech competence.  If you’ve heard me once, you’ve heard me 1000 times:  competence includes tech competence.

Colorado recently adopted an opinion on the issue.  The opinion isn’t terribly notable in that it is consistent with nearly every other advisory opinion on the topic.  However, it raises an interesting question: when does permissible viewing become impermissible harassment?

Here’s the issue:  some social media platforms alert the user whenever his or her profile has been viewed.  A notable example:  LinkedIn

In 2012, the Association of the Bar of the City of New York opined that

  • “Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research. Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct.”

The opinion was consistent with another issued in 2011 by the New York County Lawyers’ Association.

The ABA rejected New York’s approach.  In Formal Opinion 466, the ABA concluded that “the fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”

Colorado’s recent opinion echoes the ABA’s.  However, Colorado cautioned attorneys not to look too much.  Specifically, the Colorado committee noted that:

  • “Colo. RPC 4.4(a) 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. A lawyer who engages in repetitive 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. 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.”

Vermont’s Rule 4.4(a) is the same as Colorado’s.  So, while competence includes researching publicly accessible information, viewing for no other reason than to let the person know you did might not be allowed.

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