Jury Research and Social Media: A New York City Bar Formal Ethics Opinion

Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result, states a formal opinion from the New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2012-2). If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may violate the Rules of Professional Conduct.

The Internet and social media have drastically altered the ways in which individuals communicate, causing juror research to become increasingly complicated. The opinion applies the New York Rules of Professional Conduct, specifically Rule 3.5, to juror research in the internet context, and to research using social networking services and websites in particular.

The principal interpretive issue, according to the Committee, is what constitutes a “communication” under Rule 3.5.  “Communication,” the opinion notes, should be understood broadly, and includes not only sending a specific message, but also any notification to the person being researched that she or he has been the subject of an attorney’s research efforts.

Of the utmost importance, the opinion notes, is that the juror or potential jurors not learn of the attorney’s actions. “The central question an attorney must answer before engaging in jury research using a particular site or service is whether her actions will cause the juror to learn of the research.”

As stated in the opinion, “if a juror were to (i) receive a ‘friend’ request (or similar invitation to share information on a social network site) as a result of an attorney’s research, or (ii) otherwise to learn of the attorney’s viewing or attempted viewing of the juror’s pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification. We [the Committee] further conclude that the same attempts to research the juror might constitute a prohibited communication even if inadvertent or unintended.”

Social media services are often designed for the very purpose of communication, and automatic features or user settings may cause a “communication” to occur without one’s knowledge. It is therefore the attorney’s duty to research and understand the properties and functionality of the service or website, analyzing the relevant technology, privacy settings, and policies. As the opinion explains, “if 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 of Rule 3.5.”

In addition, attorneys must not use deception, such as falsely representing themselves, to gain access to information about a juror that would otherwise be unavailable. Third parties working on behalf of an attorney must comply with these same restrictions.

The Committee also cautioned that attorneys should only view information that potential jurors intend to be – and make – public. The opinion states that “some potential jurors may be unsophisticated in terms of setting their privacy modes or other website functionality, or may otherwise misunderstand when information they post is publicly available.”

However, neither Rule 3.5 nor Rule 8.4(c) prohibit attorneys from viewing public information that a juror might be unaware is publicly available, except in the rare instance where it is clear that the juror intended it to be private, the opinion states. Just as the attorney must monitor technological updates and understand the functionality of social media websites, “jurors have a responsibility to take adequate precautions to protect any information they intend to be private.”

Finally, should a lawyer learn of juror misconduct through otherwise permissible research of a juror’s social media activities, the lawyer must reveal the improper conduct to the court.