The American Bar Association Ethics 20/20 Commission and Rule 1.1 provide that a lawyer’s duty of competence “[t]o maintain the requisite knowledge and skill, [requires] a lawyer [to] keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology.”  The New York County Lawyers’ Association Professional Ethics Committee Formal Opinion 749 (Feb. 21, 2017) echoes Rule 1.1 and discusses a lawyer’s “ethical duty of technological competence.”  Therefore, in today’s world replete with tweets, posts and handles, it is important that attorneys have some degree of social media savvy.

But what exactly does a lawyer need to know or do to be savvy when it comes to the internet of things and modern day technology?  For example, who knew there is a trend nationwide that lawyers have “a duty to Google.”  (See, e.g., Johnson v. McCullough 306 SW3d 551 [Mo. 2010] [the Court held that counsel had an affirmative duty to research jurors online]).  And, while New York has not gone so far as to require counsel to research jurors, New York does have a number of ethical opinions in place that govern how/when a lawyer may conduct such research should they choose to research a juror online.

The two opinions worth being aware of are the NY County Lawyer Association Opinion 743 (2011) (“NYCLA”) and the New York City Bar Association Commission on Professional Ethics Formal Opinion 2012-2 (2012) (“NYCBA”), which both provide that a lawyer may view the social media profile of a prospective juror provided that there is no communication with the juror.  The NYCLA Opinion further provides that a lawyer cannot seek to friend jurors, subscribe to their Twitter accounts or otherwise contact the juror.  Rather, a lawyer may only visit the prospective juror’s publicly available social media content.   In addition to lawyers’ conduct vis-à-vis prospective jurors, this same rule applies to sitting jurors.

The area rife for concern is what exactly is a “communication with a juror” under these Ethical Opinions?  And what happens if a lawyer intentionally or inadvertently communicates with a juror or prospective juror?

Use of social media by the tech-rube attorney could be rife with issues, as often times social media networks will generate an automatic notice (i.e., Katy Cole viewed your LinkedIn account).  Such notices are, under the ethical opinions, a violation of the no-communication rule.  It is therefore critically important that before you, a colleague or agent conduct any social media research about jurors, that you understand how the particular network operates.*

The ABA (Formal Rule 466 [April 2014]) reaches a different conclusion: that system generated notices are not communications. “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 juror or such, does not constitute a communication from the lawyer in violation of Rule 3.5(b).”   Below is a summary chart that may be a helpful tool when trying to determine whether you may view the social media profile of a prospective or sitting juror, the limitations of what you may/may not do and your attendant obligations, should you learn of a juror’s misconduct as a result of your viewing his/her social media content.

Pre-Trial Search:

NY County Lawyer Association

  • Lawyer may view social media profile of a prospective juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network) NYCLA, Formal Op. 743 (2011)
  • Lawyer cannot seek to “friend” jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. Id.
  • Lawyer may visit whatever is publicly available. Id.

NY City Bar Association

  • Lawyer may view the social media profile of a prospective juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network). NYCBA, Formal Op. 2012-2 (2012)

Mid-Trial Search:

NY County Lawyer Association

  • Lawyer may view the social media profile of a sitting juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media networks). NYCLA, Formal Op. 743
  • Passive monitoring of jurors, such as viewing publicly available blog or Facebook page, may be permissible. Id.
  • Cannot make the juror aware of an attorney’s efforts to see the juror’s profiles on websites because might tend to influence the juror’s conduct in trial. Id.

NY City Bar Association

  • Lawyer may view the social media profile of a sitting juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network). NYCBA, Formal Op. 2012-2

Contact/Communication:

NY County Lawyer Association

  • Even inadvertent contact with a prospective juror or sitting juror caused by an automatic notice generated by a social media network is technically a violation. NYCLA, Formal Op. 743
  • Viewing the public portion of a social media profile is ethical so long as there’s no message to the account owner of such viewing. Id.

NY City Bar Association

  • Even inadvertent contact with a prospective juror or sitting juror caused by an automatic notice generated by a social media network is technically a violation.  NYCBA, Formal Op. 2012-2
  • Viewing the public portion of a social media profile is ethical so long as there’s no message to the account owner of such viewing.** Such conduct is permissible even if juror might be unaware that information is publicly available, unless it is clear that juror intended the information to be private. Id.
  • A “friend” request or similar invitation or any other form that allows the juror to learn of the attorney’s viewing or attempted viewing is prohibited communication if the attorney “was aware that her actions would cause a juror to receive such a message or notification.” If attempts to research are inadvertent or unintended, then MAY be prohibited (makes note that mens rea is not a component). Id.

Reporting Obligations:

NY County Lawyer Association

  • In the event that a lawyer learns of a juror’s misconduct due to social media research, he/she must promptly bring it to the court’s attention. Id.
  • Cannot use knowledge of juror misconduct to their advantage. Id.

NY City Bar Association

  • In the event that a lawyer learns of a juror’s misconduct due to social media research, he/she must promptly bring it to the court’s attention. NYCBA, Formal Op. 2012-2
  • Attorney must use their best judgment in determining whether a juror has acted improperly. Id.
  • Cannot use knowledge of juror misconduct to their advantage. Id.

 

* Recall the “Hustle” mortgage fraud trial in the Southern District against Bank of America Corp. A juror complained that a first-year associate on the defense team had “cyberstalked him” on LinkedIn.   In that case, U.S. District Judge Jed S. Rakoff admonished defense attorneys after a juror sent him a note complaining “the defense was checking on me on social media.”  Although “It was a good faith misunderstanding,” according to the defense counsel, it was an embarrassing and potentially costly mistake.   It is therefore important to know which systems generate automatic notices of one’s viewing activity.

** If a lawyer logs into LinkedIn and clicks on a link to a Linkedin profile of a juror, an automatic message may be sent by LinkedIn to the juror whose profile was viewed advising of the identity of the LinkedIn subscriber who viewed the juror’s profile. In order for that reviewer’s profile not to be identified through LinkedIn, that person must change his or her settings so that he or she is anonymous or, alternatively, be fully logged out of his or her LinkedIn account.

Have questions on using social media for trial research?  Please contact me at kcole@farrellfritz.com.