Be very quiet…I’m hunting Jurors!

Ex parte communications with prospective jurors and members of a sitting jury have long been prohibited.[1] (See Rule 3.5(b)). But the advent of social media has created a difficult wrinkle because lawyers are using social media to research both prospective and sitting jurors. That isn’t frowned upon, per se.  In fact, the New York City Bar Association recognized that this type of research is consistent with a lawyer’s fundamental duties. It noted that, “…standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” [2]

The problem is that part of the lawyer’s investigation process through social media could include communicating with the jurors, thereby violating Rule 3.5(b).  There could be friending, exchanges of messages, or a lawyer might just observe a juror’s social media page.  The issue is trying to figure out which of those actions actually constitute a “communication” that violates the Rule. The authorities are concerned because “social media…can blur the line between independent, private research and interactive, interpersonal ‘communication.’”[3]

The City Bar didn’t make many waves when it opined that “friending” a juror constituted a prohibited communication.[4]  That’s pretty much a no-brainer.  It shook things up slightly, however, when it stated that simply researching a juror’s social media page could constitute a communication.

The Bar was concerned about situations where a lawyer researched the jurors page and the website sends a message to the juror letting them know that the lawyer had viewed the juror’s page.  How could this happen? Consider these two specific examples: LinkedIn automatically generates a message that tells a user who has viewed the profile recently.  Also, Twitter lets a user know the identity of a new follower.  The City Bar considered those type of platform-generated messages to be considered “communication” under the rules. [5] They stated that the key factor was the effect that such knowledge would have on the receiver (in this case, the juror).[6]

The Bar held that “it is the ‘transmission of,’ ‘exchange of’ or ‘process of bringing’ information or ideas from one person to another that defines a communication”[7] and that in the world of social media, “this focus on the transmission of information or knowledge is critical.”[8] In a situation where a juror was notified that a lawyer was viewing the juror’s social media page “…the researcher imparted to the person being researched the knowledge that he or she is being investigated.”[9]  The City Bar believed that “The transmission of the information that the attorney viewed the juror’s page is a communication that may be attributable to the lawyer and even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent.”[10] In addition to being intimidating, the knowledge of that research might “tend to influence the juror’s conduct with respect to the trial.”[11] Thus, the key question is whether the juror would have learned of the lawyer’s research.[12]

Note that the City Bar made a distinction between whether the lawyer knew that the notice would be generated, or whether it was inadvertently sent.  The former was considered to be a clear violation of the rules, but the Bar wouldn’t say if they thought that the rules were broken if the message was sent by the social media page inadvertently.[13] They said it “might constitute a prohibited communication even if inadvertent or unintended.”[14] Either way, they see the communication as a no-no.

But—lest you think that the ethics world is a boring place—there is a bit of controversy on the topic.  The ABA has also opined on the topic and came down with a contradictory (and in my opinion, troubling) result.

In Formal Opinion 466 (April 24, 2014) the ABA’s Standing Committee on Ethics and Professional Responsibility evaluated the same question that NYC considered.  Knowing that Rule 3.5 prohibits communications with jurors, they considered whether a lawyer can investigate a juror/potential juror’s social media page.  The ABA resolved the easy question the same way as the City Bar. That is, overt contact with a juror (like friending) is a prohibited communication that violates Rule 3.5(b).[15]  The ABA came down differently, however, on the tough question—whether a lawyer may passively review a juror’s social media page if that review will become known to the juror. In that scenario, the ABA disagreed with NYC. The ABA thinks it’s okay.

According to the ABA, a lawyer is not communicating with a juror when a website sends an automatically generated notice to the juror telling them that the lawyer was reviewing their website. They stated, “This Committee concludes that a lawyer who uses a shared ESM platform[16] 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 ESM.”[17]

What’s amazing, is…that’s it.  That’s pretty much the crux of the decision.  The opinion is almost devoid of analysis.[18]  The only statement that in any way resembles some deeper thought is an analogy.  The opinion states, “This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”[19] Personally, I think the ABA has it all wrong.

When a lawyer passively investigates a juror’s social media page, that lawyer is reading the details to the page.[20] They are inspecting the contents and looking for information.  It’s a lot less like driving down the street near a juror’s house and lot more like standing on the juror’s lawn peering over their bushes through the picture window in their living room, or rifling through the juror’s garbage cans.  I believe it’s more intrusive than the drafters of the opinions make it out to be. And intrusive can be intimidating.

But the ABA never talked about the potential intimidation.  They failed to explore that key underlying issue all together. They simply made a distinction about who is actually initiating the communication.  Since the website sent the message, it’s not a lawyer communication.

The mistake the drafters are making is focusing on the technical manner in which the message is sent.  The issue is not about who (or what) sent the communication, rather, it’s about what triggered that communication.  The impetus for the system sending a communication to the juror was the lawyer’s research.  The website-generated communication was only triggered because the lawyer made an appearance on the juror’s webpage.  The lawyer’s snooping caused the message to be sent.

The concern that prompted the City Bar opinion was the fact that knowledge of the lawyer’s presence on the juror’s social media page could be intimidating.[21] The message, regardless of who sent it, makes the juror aware that they are being watched. The key factor to the City Bar was the effect that such knowledge would have on the receiver (in this case, the juror).[22]  That’s why they stated that “even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent.”[23]

To date there haven’t been any other states that have chimed in on the matter.

I would expect that when other states opine on the matter that they will review the rationale behind the City Bar opinion in a more meaningful way and it will be interesting to see how they decide. My gut tells me that many jurisdictions will side with the City Bar view and I think that’s a good thing. I agree with them—the knowledge of a lawyer poking around on someone’s social media page could be somewhat intimidating.  But there’s a practical problem with all of this.

The problem is that the courts are also claiming that diligence demands that we research the public internet life of jurors.  In some cases they are even encouraging us to do so.[24] So how do we reconcile those two mandates?  Do we just stay away from sites like LinkedIn and Twitter because we know that they generate these messages?  But what if that changes—maybe we know which sites generate automatic messages today, but the functionality of these platforms change daily. The answer is competence.

This is a perfect illustration of how understanding social media and technology is becoming a core competency. There is a way to fulfill your mandate of researching jurors while also avoiding these type of computer generated messages. It means, however, that you need to have an intimate understanding of the individual platforms.

A well-versed user would know that you could adjust your own LinkedIn settings so that your identity isn’t revealed to other users when you view their profiles.  A person who understands Twitter knows that you can watch what another user says without actually “following” them.  Could that all change? Yes.  And when it does, you need to know about it.  You need to stay abreast of how all these platforms work…and that’s why knowledge of social media is becoming a core competency.

 

[1] New York City Bar Association, Formal Opinion 2012-2 at 1

[2] NYC Opinion 2012-2 at 2

[3] NYC Opinion 2012-2 at 2

[4] NYC Opinion 2012-2 at 3

[5] NYC Opinion 2012-2 at 2

[6] NYC Opinion 2012-2 at 4

[7] NYC Opinion 2012-2 at 4

[8] NYC Opinion 2012-2 at 4

[9] NYC Opinion 2012-2 at 4

[10] NYC Opinion 2012-2 at 5

[11] This quote actually comes from a different opinion out of New York City.  NYCLE Committee on Professional Ethics, Formal Opinion No. 743, Issued May 18, 2011 at 3.

[12] NYC Opinion 2012-2 at 3

[13] NYC Opinion 2012-2 at 5

[14] NYC Opinion 2012-2 at 2

[15] ABA Opinion 466 at 4

[16] “ESM” stands for “electronic social media” in this opinion.

[17] ABA Opinion 466 at 5

[18] This is all a bit surprising.  ABA opinions are normally well thought out writings that delve into the rationale behind their decisions.  In this case, however, the opinion is far too superficial.

[19] ABA Opinion 466 at 5

[20] …to the extent those details are available to be seen- we’re not talking about pages that are behind a privacy wall.

[21] NYC Opinion 2012-2 at 5

[22] NYC Opinion 2012-2 at 4

[23] NYC Opinion 2012-2 at 5

[24] See NYC Opinion 2012-2 at 2 where it references the Missouri case of Johnson v. McCullough, 306 S.W.3d 551, 558-59 (Mo. 2010).

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