The New York City Bar Association’s Formal Opinion 2012-2 examines whether ethical restrictions apply to attorneys who use search engines or social media websites for the purpose of researching jurors. While the Opinion does not oppose such research (provided no communication between an attorney and potential or sitting juror occurs), it broadly interprets “communication.” Although a “friend request” would obviously constitute a communication, the Opinion struggles with whether an inadvertent or unknowing notification or message to the juror, which was triggered by the attorney’s attempt to view a page or comments (such as what can occur when one views a person’s LinkedIn™ profile), should also be treated as a communication and thereby prohibited. Ultimately, the Opinion “takes no position” on that issue and instead, cautions attorneys to understand the technology at issue, refrain from engaging in deception to gather information, and promptly report any discoveries of juror misconduct that are gleaned from the research.
Attorneys researching jurors is not a novel concept. Nor is the prohibition of communications between jurors and attorneys as codified in New York’s Rule of Professional Conduct (“RPC”) 3.5(a)(4), which states in relevant part that “a lawyer shall not . . . (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the juror unless authorized to do so by law or court order.” The application of these fundamentals and the distinction between private research and interactive communication, however, have been somewhat obscured by continuously evolving technology.
Because the Opinion interprets RPC 3.5’s absence of a mens rea or specific intent requirement as forbidding all communications with jurors – even if the attorney’s goal is to gather information – it concedes that technological challenges in this context lie in the constantly changing “functionality, policies and features of social media services.” By way of example, the extent to which an attorney can view information depends on the website at issue and whether the user has designated specific privacy settings. Likewise, some services alert a user when someone has viewed the user’s profile while others only do so if that someone has initiated “an interaction.” Therefore, the Opinion urges attorneys to educate themselves about the properties of the website or service at issue to avoid any inadvertent communication.
The critical tension between the RPCs and the ability to use Internet tools to research jurors is highlighted by the following excerpt from the Opinion:
A request or notification transmitted through a social media service may constitute a communication even if it is technically generated by the service rather than the attorney, is not accepted, is ignored, or consists of nothing more than the automated message of which the “sender” was unaware. In each case, at a minimum, the researcher imparted to the person being researched the knowledge that he or she is being investigated.
As with prior ethics opinions from various jurisdictions, this Opinion demonstrates how the Internet has simultaneously provided attorneys with easy access to all types of information and created an ethical minefield. In fact, the propriety of attorneys misrepresenting their identity through online communications to obtain otherwise unavailable information, the prohibition against using a third party such as a paralegal to engage in any such deceit or misrepresentation, and the restrictions on attorneys regarding “friending” witnesses and parties have been examined by the same author in previous blog posts made on October 8, 2009 and August 25, 2011.
Unlike the opinions referenced in those prior posts, however, Formal Opinion 2012-02 does not make a definitive finding or recommendation. Rather, it demonstrates that when attorneys use social media websites to research jurors, they have “arguably ‘communicated’ with the juror” if a juror receives an automated message. (Emphasis added). Similarly, it states that attempts to research a juror “might constitute a prohibited communication even if inadvertent or unintended.” Consequently, until a clear pronouncement is made in any jurisdiction, attorneys should routinely sharpen their social media researching skills and their familiarity with the technology, privacy settings and policies of a website if they intend to use that medium to research jurors.