The ubiquity of social media cannot be denied, nor its implications for the practice of law. Lawyers are not only being encouraged to have an online presence for networking purposes, but they are also asked to use the internet and social media to conduct research, where some courts have even reproached lawyers for not doing so. See Johnson v McCullough, 306 S.W. 3d 551 (Mo. 2010). Lawyers in New York are being asked to walk a very fine – albeit, virtual – line: to use social media to zealously and effectively represent clients, but all the while conform to professional conduct rules which have not yet been revised to reflect the use of these new tools.
To address these new challenges, various New York legal organizations and associations have published informal ethics opinions over the past few years providing guidance for lawyers using social media in their practice. Here are some tips for New York lawyers walking the virtual line when using social media to research jurors.
The current New York Rules of Professional Conduct (“RPC”) proscribe most contact a lawyer may have with a juror, with rules differing based on each stage of trial. The New York County’s Lawyers Association’s (NYCLA) Committee on Professional Ethics 2011 Formal Opinion on “Lawyer investigation of juror internet and social networking postings during conduct of trial” explains:
“The RPC explicitly draw a distinction between conduct during trial, which is governed by RPC 3.5(a)(4), and conduct after discharge of the jury, which is regulated less strictly under RPC 3.5(a)(5). In fact, a lawyer’s contact with jurors is divided, at least in practice, into three distinct areas. These are voir dire or jury selection, actual conduct of the trial, and post-verdict contact with jurors. As mentioned, any contact, direct or indirect, is proscribed as a matter of attorney ethics during the conduct of the trial, but permitted with certain conditions after discharge pursuant to RPC 3.5(a)(5).”
Rule 3.5(a)(4) of the RPC already makes clear that communications between a lawyer and juror are not permitted unless authorized by the court or by law:
“[A] lawyer shall not . . . (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the jury unless authorized to do so by law or court order.”
However, the value and efficiency of using the internet and, especially, social media to conduct juror research presents another way for lawyers to in fact serve their clients better. Thus, and as the 2012 New York City Bar Association’s (“NYCBA”) Ethics Opinion on “Jury Research and Social Media” demonstrates, an understanding of what constitutes a “communication” is the key to any lawyer seeking to use social media to investigate jurors.
The NYCBA’s opinion analyzes the definition of “communication” and ultimately concludes that what truly defines a “communication” is “the effect on the receiver,” and not what a sender may intend. Thus, what is crucial for lawyers to keep in mind is that even if one does not intend for a communication to occur, but one occurs nonetheless (for example, as auto-generated by a website), and the juror becomes aware of such “communication,” then the lawyer may have improperly “communicated” with a juror. After all, since Rule 3.5(a)(4) “does not contain a mens rea requirement . . . it prohibits all communication, even if inadvertent.” Id. Often, internet research that we conduct everyday – looking up a restaurant, or investigating what gift to buy – sends information to the owners of the relevant websites, providing valuable data to online proprietors. Similarly, internet research conducted on people may also send such information to social media websites, as well as to the users of those websites. Such common transmissions of information online can thus amount to “communications” when conducting juror research online, and thus a NY lawyer must be very careful before embarking on any such research.
To prevent inadvertent communication, lawyers should be especially careful of what social media applications they use, and how. “The Committee therefore re-emphasizes that it is the attorney’s duty to understand the functionality of any social media service she chooses to utilize and to act with the utmost caution.” See id. And so, a lawyer must carefully examine a social media application’s privacy policies and notification settings, and verify that the site does not notify users when their profiles are viewed. Such information can be found under headings like “Privacy” or “Help” on these websites, and lawyers should thoroughly examine these sections before conducting any juror research. Examples of such information can be found at the following links for the certain popular sites: Facebook, LinkedIn, Twitter. Often, the receipt of a notification may depend on the settings a specific user has set up – which are unknown to a third party viewing the user’s page or account. Thus, if there is a remote chance that users can receive notifications from a website, NY lawyers should not use such a site.
Even the most careful attention to a social media application’s privacy policies, however, may still not prevent inadvertent communication. Something that neither Ethics Opinion discusses, but is nonetheless disconcerting, is the always possible data leak. Even if a user cannot find out who has viewed his profile, the social media application always keeps track of, and has access to, this information. We place an enormous amount of trust in social media sites to manage and secure their data; however, over the past few years even certain popular sites have been subject to security breaches. Seeing as the RPC condones any sort of communication with a juror, an inadvertent data leak that communicates to a juror that his profile was in fact searched may also qualify as an impermissible communication, and a resulting violation of the RPC.
Strategically, lawyers should recognize that the risks and costs of inadvertent communication with a juror during trial are far greater than before or after trial: “[W]hile an inadvertent communication with a venire member may result in an embarrassing revelation to a court and a disqualified panellist [sic], a communication with a juror during trial can cause a mistrial.” Id. There have already been specific cases where juror misconduct via social media has led to mistrials, among other consequences. From the overturning of a murder conviction in Arkansas due to a juror’s tweets during the case, to the setting aside of a verdict in South Dakota where jurors were sharing information obtained via internet research with each other, the use of the internet and social media by jurors has caused new problems for judges and attorneys alike. Id.; NYCLA 2011 opinion.
Finally, a NY Lawyer must also keep in mind that she “may not use a third party to do what she could not otherwise do.” NYCBA 2012 opinion. RPC 8.4(a) prohibits a lawyer from violating a rule “through the acts of another.” Thus, asking an agent or third party to conduct online research on a juror, where a communication could result, is likewise impermissible.
The bottom line is that it is too easy nowadays to access and use social media, with such information quite literally in the palms of our hands. Smartphones enable a lawyer to conduct a quick search of a juror while waiting for a bus or distracted in a meeting. In one way or another, most communication over the internet is traceable – and if that traceability is communicated to a juror, a lawyer is at risk for having inadvertently violated the RPC. Inappropriate social media communications from jurors have led to serious miscarriages of justice – let’s make sure that lawyers don’t make the same mistakes.