Posted Jul 01, 2014 08:40 am CDT
Courts have been dealing for a while now with jurors discussing the trials they’re deciding through postings on websites accessible to the public and electronic social media that allow restrictions on access, such as Facebook, Myspace, LinkedIn and Twitter. Trial judges generally try to restrict such activities with admonitions in their instructions to the jury.
But as more and more lawyers are looking to websites and social media to learn more about both sitting jurors and prospective jurors, they, too, need some guidance on just how far they may go.
The ABA Standing Committee on Ethics and Professional Responsibility offered its advice in Formal Opinion 466 (PDF), issued April 24. Formal opinions are based on the ABA Model Rules of Professional Conduct, which provide the substantive basis for binding rules governing lawyers in every state and the District of Columbia, although the rules in California follow a different format.
The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may review a juror’s or potential juror’s various postings on websites and social media. But the lawyer should not send jurors or prospective jurors a request for access, either directly or indirectly, to their social media accounts because doing so would amount to a violation of the prohi-bition in Model Rule 3.5(b) against ex parte communications with jurors that are not authorized by law or court order.
In a footnote, the ethics committee states that it “does not take a position on whether the standard of care for competent lawyer performance requires using Internet research to locate information about jurors that is relevant to the jury selection process. We are also mindful of the recent addition of Comment  to Model Rule 1.1. This comment explains that a lawyer ‘should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’ “
The various types of social media are rapidly moving and morphing targets, which means that today’s guidelines may be outdated by tomorrow. Ethics opinions traditionally have been cut in stone, but they now might be etched in warm wax.
“Technology changes so fast it’s always now a game of catch-up,” says Donald R. Lundberg, a partner and deputy general counsel at Barnes & Thornburg in Indianapolis who is a member of the ethics committee. “We tried to keep it generic enough to be useful for a while.”
Formal Opinion 466 addresses three levels of lawyer review of a juror’s Internet footprints:
• Passive review of a juror’s website or social media profile that is available without making an access request, and is done without the juror’s knowledge. The opinion states that the “mere act of observing” is not improper ex parte conduct, comparing it to driving down the juror’s street to get a sense of the neighborhood.
• The lawyer requests access to the juror’s social media account, which the opinion describes as an active review. The opinion concludes that such a request amounts to ex parte communication prohibited by Model Rule 3.5(b), much like stopping the car to ask the juror’s permission to look inside the juror’s house.
• The juror becomes aware through a notification feature of the social media or website that the lawyer has conducted a passive review of the juror’s publicly available infor-mation. The opinion states that the social media entity, not the lawyer, is communicating with the juror, just as if a neighbor told the juror that the lawyer drove down the street.
In March, the New York State Bar Association reached a different conclusion from ABA Formal Opinion 466 on what amounts to communication with a juror. The New York bar issued Social Media Ethics Guidelines stating that automatic, third-party notification to a potential juror amounts to improper, ex parte communication by a lawyer. The state bar’s action followed similar findings by committees of the New York County Lawyers’ Association and the New York City Bar Association.
Under Guideline No. 3, a lawyer may view the public portion of a person’s social media profile or public posts even if that person is represented by another lawyer. But the lawyer must be aware that certain networks may send an automatic message to the person whose account is being viewed that identifies who is viewing the account as well as other information about the viewer.
A comment to the guideline states that lawyers should “always use caution when conducting [jury] research” to ensure that no communication with jurors occurs. Opinions issued by the New York City and New York County bars state that even inadvertent contact with a prospective or sitting juror caused by an automatic notice sent by a social media network may be considered a technical ethical violation. But those opinions have not taken a definitive position that such unintended automatic contact is subject to discipline.
The ABA ethics committee considered that position but instead concluded that a lawyer who uses a shared electronic social media platform “to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature” of the site.
The committee added a suggestion for judges to advise jury pools that the lawyers have legitimate interests in learning more about their backgrounds, and that they likely will be looking for information about them on the Internet, including social media. “Discussion by the trial judge of the likely practice of trial lawyers reviewing juror ESM during the jury orientation process will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network,” states Opinion 466.
“Frankly, that was a different twist on a garden-variety ethics opinion,” Lundberg says. “We went beyond saying ‘This is what the rules would say about that,’ and recommend how judges might treat social media. They’re already giving them fairly strong warnings about communicating about the trial on social media, or doing their own independent investigations on the Internet,” he says.
“That’s a good point,” says Ignatius Grande, a co-chair of the social media committee of the Commercial and Federal Litigation Section of the New York State Bar Association, which issued the more restrictive guideline on automated notification. “If judges warn jurors of possible background checks, and it’s probably being done more often, then it might be somewhat less an issue. I doubt it’s being mentioned in every jury trial, and getting that notification can affect a juror,” says Grande, an attorney at Hughes Hubbard & Reed in New York City who is the firm’s director of practice support.
ABA Formal Opinion 466 hedges on the issue of a lawyer’s obligation to notify the court when an Internet search turns up misconduct by a juror and concludes that the history of Model Rule 3.3, which addresses the issue, “is muddled concerning whether a lawyer has an affirmative obligation to act upon learning that a juror has engaged in improper conduct that falls short of being criminal or fraudulent.”
The opinion notes that the ABA House of Delegates adopted a recommendation by the Ethics 2000 Commission that amended Model Rule 3.3(b) to direct lawyers to take “reasonable remedial measures, including, if necessary, disclosure to the tribunal” when the lawyer learns that a juror is engaging, or intends to engage, in criminal or fraudulent conduct. But the commission, which conducted an extensive review of the Model Rules, had intended that Model Rule 3.3 be revised to also cover lesser wrongdoing—“improper conduct.” But this intent of the Ethics 2000 Commission “was never carried out,” the ethics committee states in its opinion.
For now, if a lawyer comes across publicly available information about a juror on the Internet that indicates a violation of court instructions but not criminal or fraudulent actions, applicable law might trigger the lawyer’s duty to report it to the court under Model Rule 3.3(b).
Formal Opinion 466 reminds lawyers that the recent addition of Comment 8 to Model Rule 1.1 says they should keep up with the benefits and risks of technology, which cut both ways: Good lawyering means using social media, but using it properly.
Even then, it might bite them. Plaintiffs lawyer Spencer Aronfeld of Aronfeld Trial Lawyers in Coral Gables, Florida, used his iPad in a Miami courtroom in 2012 to look at the Facebook page of a potential juror in a medical-malpractice case concerning amputation after a failed penile implant. The Internet connection was weak, and Aronfeld repeatedly twisted and turned the device in various directions for access, at one point unknowingly sending a “friend” request to the potential juror, who happened also to be a prosecutor—who promptly notified the judge of the contact.
“The judge was basically reading me my rights and was going to hold me in criminal contempt,” says Aronfeld, who might as well have argued that a dog ate his homework. But another lawyer in the courtroom had observed Aronfeld’s gyrations with the iPad and explained to the court what had happened. But, Aronfeld says, “even today I have a hard time laughing about it.”
This article originally appeared in the July 2014 issue of the ABA Journal with this headline: “What You See Is What You Get: Lawyers may look at what jurors post online, but only if it’s available to the public.”