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Issue: September 2011

Ethics Corner

Recent Decisions OK Use of Internet for Investigating Jurors

May attorneys investigate jurors and potential jurors using the internet and social networking sites like Facebook and Twitter? Several recent decisions answer the question in the affirmative.

In a recent ethics opinion, the New York County Lawyers Association Committee on Professional Ethics considered whether, after jury selection is complete, an attorney may conduct ongoing research on a juror via Twitter, Facebook, and other social networking sites. ( N.Y. Cnty. Lawyers Ass'n Comm. On Prof'l Ethics Op. 743 (May 18, 2011)). The Committee concluded that while an attorney may not contact a juror or potential juror under Rule 3.5 of the New York Rules of Professional Conduct, an attorney may access publicly available social networking sites if the juror is unaware that the attorney is doing so. Rule 3.5(a)(4) prohibits an attorney from communicating with or causing another person to communicate with the jury pool or members of the jury during the course of a trial.

The Committee opined that while an attorney may access publicly available social networking sites, sending a friend request via Facebook, connecting with a juror via LinkedIn, signing up for a RSS feed of a juror's blog, or following a Twitter account would entail impermissible contact with a juror. Furthermore, if the juror becomes aware that an attorney is monitoring social networking sites, "the contact may well consist of an impermissible communication, as it might tend to influence the juror's conduct with respect to the trial." As the Committee noted, recent ethics opinions have outlined other considerations for accessing social networking sites ethically. See N.Y. State Bar Ass'n. Comm. on Prof'l Ethics, Op. 843 (2010); see also Phila. Bar Ass'n. Prof'l Guidance Comm., Op. 2009-02 (March 2009). The Committee also noted that under Rule 8.4, attorneys may not direct others to do what they themselves cannot.

Addressing a related issue, the New Jersey Appellate Division held that, under New Jersey law, attorneys are permitted to research potential jurors via the internet as part of jury selection. Carino v. Muenzen, No. A-5491-08T1, 2010 WL 3448071(N.J. App. Div. Aug. 30, 2010), cert. denied, 205 N.J. 96 (Feb. 3, 2011). In Carino, a medical malpractice case, plaintiff's counsel used a laptop computer in the courtroom to Google potential jurors. When the trial judge became aware of the attorney's actions, the judge prohibited further internet research in the courtroom on the basis that because the plaintiff's attorney had not provided advance notice of his intention to research potential jurors on the internet, defense counsel (who did not have a laptop computer in the courtroom) was disadvantaged.

Plaintiff appealed on the basis, among others, that the trial court abused its discretion by precluding his attorney from conducting internet research on prospective jurors, thereby depriving him "of the opportunity to learn about potential jurors . . . one of the most fundamental rights of litigation." The Appellate Division agreed and found that the trial court acted unreasonably in denying plaintiff's counsel use of the internet. The Appellate Division explained that, "There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of ‘fairness' or maintaining 'a level playing field.' The ‘playing field' was, in fact, already ‘level' because internet access was open to both counsel, even if only one of them chose to utilize it." The Appellate Division found that plaintiff's counsel was not prejudice as a result of the trial court's decision, however, because plaintiff's counsel could not point to one juror who would have been struck as a result of information discovered via an internet search.

In another case touching on internet investigation of jurors, the Supreme Court of Missouri held that attorneys have an obligation to investigate the background of jurors and ordered that going forward, "a party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial." Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010). In that case, plaintiff's counsel sought a new trial after discovering that one of the jurors had lied during voir dire about previous litigation experience.

As technology develops, attorneys will have at their disposal additional means of conducting research on potential and sitting jurors. But attorneys must remember that while the technology has changed, the ethics rules still apply.

Ethics Corner is a regular contribution by the Section's Ethics and Professional Responsibility Committee.

Justin M. Swartz is a partner at Outten & Golden LLP, www.outtengolden.com, and Co-Chair of its Class Action Practice Group. He has represented employees in class action discrimination and wage/hour cases, as well as individual discrimination cases and other employment matters, since 1998. Mr. Swartz is Employee Co-Chair of the Section of Labor & Employment Law Annual Conference Committee.

Cara E. Greene is an associate at Outten & Golden LLP, www.outtengolden.com, where she represents employees in litigation and negotiation in all areas of employment law, including disability, pregnancy, and family responsibilities discrimination; class actions; and executive and professional contracts and compensation. She is a member of the Section's Ethics and Professional Responsibility Committee and is Plaintiff Co-Chair of the Complex Litigation subcommittee of the Employment Rights and Responsibilities Committee.

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813