Concerned about the ethical propriety of researching the venire? Perhaps lawyers should be equally concerned about failing to employ investigative tactics to aid in jury selection. New York City Bar Formal Opinion 2012-2 illustrates this issue:
“Just as the internet and social media appear to facilitate juror misconduct, the same tools have expanded an attorney’s ability to conduct research on potential and sitting jurors, and clients now often expect that attorneys will conduct such research. Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.”
While it is a bit of a leap to conclude that failing to conduct research regarding the jury pool’s social media accounts would be the basis of malpractice liability, ineffective assistance of counsel, or disciplinary action, this quote gains greater veracity as technology evolves and information via social media becomes increasingly available. Along this line, an opinion of the Supreme Court of Missouri dealing with juror non-disclosure scolded an attorney for failing to conduct juror research at an earlier stage of the proceedings that would have prevented the need for a retrial. See Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010).
However, Model Rule 3.5(b) poses a major ethical problem to lawyers in using social media to investigate potential jurors. The rule states that a lawyer shall not “communicate” ex parte with a juror or prospective juror during the proceeding. The NYC opinion referenced above concluded that investigation of jurors becomes improper if it results in a communication to the potential juror, perhaps even when it occurs unknowingly or unintentionally. See also NYCLA Comm. on Prof’l Ethics, Formal Op. 743 (May 18, 2011). Different social network services offer varying degrees of functionality but, for example, a friend request on Facebook would most likely constitute an unethical communication because the juror will be notified of the request. A Twitter user is likewise notified when a new follower joins. A closer call, but an instance still likely to be impermissible, involves the use of LinkedIn. If an attorney views a potential juror’s profile, that person receives an automatic message that the attorney has viewed the profile. LinkedIn does offer viewers the functionality of blocking the subject of the research from seeing that his or her profile has been viewed, but is such blocking a form of deception that runs afoul of Model Rule 8.4(c)?
Rule 3.5(b) would generally not prohibit lawyers from investigation of public information on a potential juror’s social networking sites; however other ethics rules may limit investigation of potential jurors. For example, lawyers may not engage in any form of misrepresentation or deception in connection with investigation. See the New York opinion cited above and New Hampshire Ethics Op. 2012-13/05, dealing with social media contacts with witnesses.
While the parameters of ethical investigation of juror social media accounts currently are not well defined, several guidelines can be discerned. First, lawyers should not be so ill-informed or defensive that they completely ignore the information social media sites have to offer. Gathering information from social media accounts is progressively becoming achievable and expected. Second, lawyers should generally be able to seek publicly available social media information about prospective jurors so long as they or their agents do not engage in misrepresentation. Third, attempts by lawyers or their agents to obtain private social media information are likely to involve a communication in violation of Rule 3.5(b) and should be avoided absent authority in the controlling jurisdiction.
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