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: