USING SOCIAL MEDIA OR SEARCH
ENGINES TO OBTAIN JUROR BACKGROUNDS
By: Michael L. Fox
Imagine that you open your mail and find a summons for service as a potential juror in your nearby, local, state or federal court. If this has happened to you, and you have been called to sit on the venire panel so that you could be questioned as a potential juror by the attorneys for the parties (or by the district judge or magistrate judge in federal court), have you ever wondered if the parties’ attorneys are also examining your background via social media or the Internet? In fact, with the growth of social media sites and internet research capabilities, it is very likely that attorneys are not only questioning you in the courtroom, but they are also researching your background on the Internet.
Recently, the American Bar Association (“ABA”), the New York State Bar Association (“NYSBA”), the New York County Lawyer’s Association (“NYCLA”), and the New York City Bar Association (“City Bar”) have all issued ethics opinions discussing the extent to which attorneys can go in order to research potential jurors.
Most recently, the ABA issued its Formal Opinion 466, in which the ABA Standing Committee on Ethics and Professional Responsibility evaluated what an attorney could do in terms of reviewing a juror’s presence on the Internet. The following is from the text of the opinion, which was issued April 24, 2014:
Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.
A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).
The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).
In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.
With the wealth of information that exists on the Internet with regard to an individual’s political views, social views, community activities, and other information, it has been asserted by some that if an attorney does not perform any background searches on potential jurors via the Internet, that the attorney may be doing something wrong. While that view is not widely held, there is much information that can be mined and learned about potential jurors in both a legal and ethical fashion, such that attorneys should consider whenever possible, pursuant to the dictates of resources and time, undertaking to research a potential juror’s background on the Internet.
ABA Formal Opinion 466 provides that pursuant to the Model Rules of the ABA, Model Rule 3.5 addresses communications with jurors before, during, and after trial, and can be looked to for prohibitions and provisions that govern lawyer’s conduct when there is no court order or rule to the contrary in the particular jurisdiction in which the attorney is practicing.
Most authorities are clear that the attorney can only undertake research of a juror when it does not interfere with or seek to influence a juror’s decision, and when a juror is not aware that the search is being undertaken.
NYSBA Opinion #843 (2010) held that an attorney can view the page of another party, so long as the attorney does not “friend” the person on social media or have a third-party do so. An attorney can use public pages of the social network and there is no problem with New York Rules of Professional Conduct 4.1, 4.2, 4.3, 5.3(b)(1), or 8.4. An attorney can view websites, so long as they are public and passive – meaning the attorney can review them like they would review a magazine. However, an attorney cannot have a third-party do anything that the attorney could not ethically do himself or herself. Furthermore, even when researching the background of a litigant or a witness, an attorney must be cautious, especially with an unrepresented adverse party or adverse witness. The NYSBA in its Opinion #843 cited the Philadelphia Bar Association’s Opinion 2009-02, which held that pursuant to a Pennsylvania Rule (similar to New York’s Rule 8.4(c) governing attorney conduct), that the lawyer’s intention to have a third-party “friend” a witness to gain access to non-public Facebook and MySpace pages, and find impeachment material, would violate the Rules concerning attorney dishonesty/fraud/deceit and misrepresentation.
In addition, the City Bar has issued Opinion 2010-2, in which the NYC Bar’s Committee evaluated whether an attorney could, directly or through another, contact an unrepresented person (other than a juror) through social networking. The answer was both “yes” and “no.” An attorney is not permitted, under the NYC Bar’s Opinion, to use trickery in this or any other ways. There are non-deceptive means that can be utilized when an attorney is on social media looking for information.
Of course, these several opinions of the State and City Bar Associations apply to attorneys researching witnesses and parties. When it comes to jurors, the rules become much stricter so that the wall between parties and jurors is not broken down or weakened. The jury venire must not be cracked. Therefore, pursuant to the ABA’s Opinion, it is best for an attorney to undertake passive research of jurors’ backgrounds on social media and the Internet.
The City Bar has issued Opinion 2012-2, which provides guidance concerning limits on attorneys using social media to research potential and sitting jurors. The City Bar Opinion held that an attorney may not have contact in any way, or cause another person to contact or send a message that would be received by a juror or potential juror – which includes a “friend” request.
Likewise, the New York County Lawyer’s Association issued its Opinion 743 in 2011, and it held that no contact, no friending and no tweets can take place between an attorney and a juror or potential juror. The NYCLA opinion held that a juror must not become aware of or be made aware of the monitoring, and a lawyer may not engage in deceit or misrepresentation, or cause others to do so, in order to obtain information on a juror. NYCLA Opinion 743 also said that if an attorney were to become aware of misconduct or deliberations that were in violation of the Court’s instructions to a jury, the attorney must advise the Court under Rule 3.5 before the attorney engages in any further activity.
In fact, judges have recently begun issuing jury instructions to jurors concerning the Internet and social media. In August of 2012, the Federal courts began utilizing a new model jury instruction for both civil and criminal cases in which jurors are instructed not to research matters before them on the Internet or social media. Jurors are also instructed not to communicate with others during trial or deliberations on Blackberry, iPhone, other cell phones, e-mail, Twitter, Facebook, LinkedIn, YouTube or other technologies.
ABA Formal Opinion 466 also holds that the Committee views the restrictions on attorneys as being that a lawyer may not personally or through another send an access request to a juror. The Committee held that “This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.” That is barred.
Many state bar association ethics panels have been weighing-in on the ethical restrictions affecting attorney research of juror backgrounds. While some ethics opinions have held that a juror who becomes aware that a lawyer is reviewing his or her Internet presence, through network settings that notify a juror of such searches, would not constitute a violation of the ABA’s Model Rule 3.5(b) – it is this author’s opinion that the better practice would be to avoid any circumstance where the potential juror or juror becomes aware of the background search by the attorney. That may mean an attorney would have to change their own social media network setting to show up as an unidentified individual or “anonymous” on another social media network user’s register of page views, so as not to disclose the identity of the attorney utilizing the public pages of the potential juror to obtain information. Generally speaking, in New York that is the best practice.
As a potential juror, one should know that attorneys and parties may be looking into the juror’s background, social activities, political views, and even prior articles or blogs. While it should not dissuade potential jurors from exercising their rights of free speech, it is something that potential jurors may find to be of interest, and may wish to be aware of during the course of their jury service.