The New York City Bar Association, within a recent ethics opinion, addressed the issue of whether an attorney is permitted to access social media websites to investigate the backgrounds of potential jurors and to monitor jurors’ activities during a trial. In seeking to balance an attorney’s interest to conduct juror background research with the ethical prohibition against ex parte communication between lawyer and juror, the opinion strikes a reasonable compromise that satisfies both competing interests, yet takes into account the realities of today’s wired world.
The issue had been previously addressed in 2011 by the New York County Lawyers’ Association (pdf link), which expressed the opinion that a lawyer may conduct juror research via the Internet during jury selection and trial by viewing a juror’s publicly-available social media websites (Facebook, Twitter, etc.), but the lawyer would be ethically prohibited from directly contacting the juror via the site (sending a “friend” request) in an attempt to access the “private” portions of a juror’s social media page that were otherwise unavailable to the viewing public. In other words, if a juror maintains a Facebook page and has chosen not to place privacy settings on that page such that the page could be equally accessed by any Internet user, the information on that page is fair game.
The NYCBA opinion analyzed the definition of “communicate” to determine if a lawyer’s mere visit to a juror’s public social media page was tantamount to prohibited contact between the two parties and determined that if the lawyer does not affirmatively attempt to contact the juror (i.e., a “friend” request), the simple viewing of the juror’s page is permissible. The opinion does caution that certain social media sites may, without the attorney’s knowledge, automatically notify the juror that his/her page has been viewed by, in this example, the attorney conducting the juror research. The Bar opinion stops short of expressly defining such “inadvertent” contact as a prohibited “communication,” but does caution attorneys to become familiar with the mechanics of each social media site so as to avoid even this type of unintentional contact as it could be deemed unethical. The Bar opinion also embargoes the use of third-parties (an investigator or non-lawyer in the office) from contacting jurors on the lawyer’s behalf and also bans the use of subterfuge or deception to gain access to a juror’s private web page (i.e., pretending to be an old friend or family member seeking to regain contact with the juror via the social media site).
Additionally, the Bar opinion mandates that an attorney must promptly notify the court of any juror misconduct that is discovered during voir dire or the trial itself. For example, if the trial attorney visits a juror’s public Twitter or Facebook page and learns that a juror is researching the issues in dispute at trial, is peering into a trial witness’ background or communicating with another juror regarding the trial, the attorney is required to quickly notify the court.
The policies adopted by the Bar opinion are logical and natural extensions of those in effect prior to the onset of today’s wired world. In the “old days,” such ex parte communication during trial — whether it be a direct conversation, letter or call from a pay phone — was deemed unethical behavior. While in 2012 the modes of communication have dramatically changed and a lawyer’s ability to research and communicate with a juror has become monumentally easier and exponentially faster, the underlying ban against juror contact remains the same.