Topic: Jury Research and Social Media
Question: “What ethical restrictions, if any, apply to an attorney’s use of social media websites to research potential or sitting jurors?”
Digest of the Committee:
“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 attorney must not use deception to gain access to a juror’s website or to obtain information, and third parties working for the benefit of or on behalf of an attorney must comport with all the same restrictions as the attorney. Should a lawyer learn of juror misconduct through otherwise permissible research of a juror’s social media activities, the lawyer must reveal the improper conduct to the court.”
Rules: 3.5(a)(4), 3.5(a)(5), 3.5(d), 8.4
The full text is available at http://www.nycbar.org…
Comments of the editors of this website:
The NYCB gives guidelines for attorneys’ use of social media and Internet for juror research.
Because of the increasing use of social networking platforms and the Internet during and after trial by both attorneys and jurors, the New York City Bar Association issued Formal Opinion 2012-02. Indeed, the issue is delicate: misuse of technology by attorneys resulted in ethical violations while jurors’ misuse resulted in jurors being held in contempt or even in mistrials.
The opinion provides practical application of Rules 3.5 (Maintaining and Preserving the Impartiality of Tribunals and Jurors) and 8.4 (Misconduct) in this context.
In general, Rule 3.5(a)(4) prohibits communication with a member of the venire during voir dire and the jury during trial. Rule 8.4(a) forbids an attorney from violating a rule through the acts of another and 8.4(c) prohibits deception and misrepresentation.
The concluding paragraph of the opinion provides concise guidance to lawyers for communication with (a) potential or sitting jurors and (b) discharged jurors.
As for communications with jurors, the Committee opined that “an attorney may research potential or sitting jurors using social media services or websites, provided that a communication with the juror does not occur.”
The Committee warns that “communication,” “should be understood broadly, and includes not only sending a specific message, but also any notification to the person being researched that they have been the subject of an attorney’s research efforts.” In particular, the Committee reminds that “[i]n the context of researching jurors using social media services, an attorney must understand and analyze the relevant technology, privacy settings and policies of each social media service used for jury research.” The Committee specifies that “[t]he attorney must … avoid engaging in deception or misrepresentation in conducting such research, and may not use third parties to do that which the lawyer cannot.” As for communications with discharged jurors, the Committee opined that “although attorneys may communicate with jurors after discharge of the jury in the circumstances outlined in the Rules, the attorney must be sure to comply with all other ethical rules in making any such communication.”