Hello and welcome to this Ethics Alert blog which will discuss the recent New York City Bar Association Ethics Opinion which warns lawyers about online contact with jurors (or the venire) while conducting research using social media. The opinion is NYCB Formal Opinion 2012-2, Jury Research and Social Media, Op. 2012-1 and the link is here: 2012 NYC Bar Social Media Ethics Opinion.
According to the opinion, “as the internet and social media have changed the ways in which we all communicate, conducting juror research while complying with the rule prohibiting juror communication has become more complicated.” The opinion states that, although lawyers are permitted to research potential and sitting jurors on Facebook and other social media sites, communications with jurors should be avoided and it is not always easy to anticipate whether a visit to a website will result in a communication.
The opinion states that it would be unethical for lawyers or the lawyer’s representatives to make juror friend requests and that improper communications may occur not only through “friend” requests, but also when the lawyer is aware that his or her review of the juror’s comments, pages or posts will be disclosed to the juror. In addition, a violation might occur even if the communication to the juror is inadvertent or unintended.
Although the opinion commented that the relevant NY Bar Rule (Rule 3.5 which is substantially similar to Florida Bar Rule 4-3.5) appears to prohibit even unintentional juror communication, it did not take a position on whether such an inadvertent communication would actually be a violation of the rule. According to the opinion, “(i)n the social media context, due to the nature of the services, unintentional communications with a member of the jury venire or the jury pose a particular risk….(f)or example, if an attorney views a juror’s social media page and the juror receives an automated message from the social media service that a potential contact has viewed her profile-even if the attorney has not requested the sending of that message or is entirely unaware of it-the attorney has arguably ‘communicated’ with the juror.”
The opinion gives the following advice, “(i)t is incumbent upon the attorney to understand the functionality of any social media service (that the attorney) intends to use for juror research.” Further, “(i)f an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation.” In addition, any lawyer conducting online research who learns of juror misconduct is obligated to promptly notify the court.
Bottom line: As I have said before on numerous occasions, ethics opinions are not binding; however, good faith reliance by a lawyer on an ethics opinion (particularly if it is from the same jurisdiction) may constitute significant mitigation in later proceedings. Florida has no formal Ethics Opinion which addresses these issue. This opinion addresses a NY Bar Rule that is similar to Florida’s rule and states that the NY Bar rule appears to prohibit even inadvertent contact and also warns that such contact may occur if a juror is automatically notified that his or her profile or information have been accessed. While this position is commendable, it may go beyond the scope and intent of the rule prohibiting contact with jurors. Notwithstanding this observation, all lawyers should proceed with extreme caution when wading into the digital and social media world in the 21st century…
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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