Lawyers may research potential and sitting jurors on Facebook and other social media sites, but communications with jurors should be avoided, according to a new ethics opinion.
The opinion by the New York City Bar Association’s Committee on Professional Ethics notes that it’s not always easy to discern whether a visit to a website will result in a communication.
The opinion says it is unethical for lawyers or those working on their behalf to make juror friend requests, a finding that is in accord with a recent opinion by New York County Lawyers’ Association. But the City Bar opinion sets out to address a broader issue: what constitutes a prohibited ex parte communication with a juror.
According to the opinion, the ban on communication is violated 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.
“In 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,” the opinion says. “For 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.”
Although the relevant rule appears to bar even inadvertent communication, the ethics committee takes no position on whether such a communication would in fact be a violation. “Rather, the committee believes it is incumbent upon the attorney to understand the functionality of any social media service she intends to use for juror research,” the opinion says. “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.”
Any lawyer conducting online research who learns of juror misconduct is obligated to promptly notify the court, the opinion says. The bar’s 44th Street Blog has a summary.