YourABA October 2011 Masthead

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Facebook: Monitoring juror social media networking sites; “friending” employees of adverse parties

By Peter H. Geraghty
Director, ETHICSearch

You are representing a client in a personal injury matter.  During pre trial voir dire proceedings and during the trial itself, can you search for and monitor jurors’ and potential jurors’ Twitter accounts and social network Internet postings?  What are your obligations should you uncover evidence of juror misconduct?

You represent a client in a wrongful discharge matter against the client’s former employer.  You have reason to believe that certain high-level employees of the employer are dissatisfied and may be likely to post unfavorable comments about the employer on their private social networking pages.  Can you send a “friend” request to these employees to gain access to their private social media pages?

Since the publication of the last Eye on Ethics column on Facebook, November of 2010, “Facebook: State Bar Opinions Address Information Gathering,” there have been some new state bar opinions that have addressed various issues that relate to social networking. The topics covered include monitoring jurors’ social network and Internet postings, and whether a lawyer can “friend” high-level employees of an adverse represented party.

I. Monitoring jurors’ social network and Internet postings

New York County Lawyers’ Association Committee on Professional Ethics Opinion 743 (2011) addressed the question of whether a lawyer can monitor jurors’ social network and Internet postings.  Referring to Rule 3.5 Maintaining and Preserving the Impartiality of Tribunals and Jurors of the New York Rules of Professional Conduct, the committee noted that a lawyer is prohibited from any direct or indirect communication with a juror during trial and certain types of communications are also prohibited after trial.  Subparts (a)4 and (a)5 of the New York Rule states as follows:

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 jury unless authorized to do so by law or court order;

5. communicate with a juror or prospective juror after discharge of the jury if (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer a desire not to communicate; (iii) the communication involves misrepresentation, coercion, duress or harassment; or (iv) the communication is an attempt to influence the juror's actions in future jury service ...

The New York committee cited several authorities for the proposition that a lawyer can conduct background Internet research on jurors during the voir dire stage of the proceeding stating:

…Some authorities have examined a lawyer's use of Internet resources to investigate potential jurors in the voir dire stage. For example, one recent Missouri decision considered and set aside a jury verdict in which a juror had specifically denied (falsely) any prior jury service. See Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010). In holding that the juror had acted improperly, the Court observed that a more thorough investigation of the juror's background would have obviated the need to set aside the jury verdict and conduct a retrial. The trial court chided the attorney for failing to perform Internet research on the juror, and granted a new trial, observing that a party should use reasonable efforts to examine the litigation history of potential jurors. 306 S.W. 3d at 559. A New Jersey appellate court similarly held that the plaintiff counsel's use of a laptop computer to google potential jurors was permissible and did not require judicial intervention for fairness concerns. See Carino v. Muenzen, No. A-5491-08T1, N.J. Super. Unpub. LEXIS 2154, at *26-27 (App. Div. Aug. 30, 2010); see also Jamila A. Johnson, "Voir Dire: to Google or Not to Google" (ABA Law Trends and News, GP/Solo & Small Firm practice area newsletter, Fall 2008, Volume 5, No. 1).

The committee concluded that the lawyer could monitor a juror's publicly available social media webpages so long as the lawyer does not “friend” the juror, attempt to connect to the juror’s LinkedIn account, subscribe to her Twitter accounts or otherwise “act in any way that by which the juror becomes aware of the monitoring.”  If the juror becomes aware that the lawyer is monitoring her postings, “the contact may well consist of an impermissible communication, as might tend to influence the juror’s conduct with respect to the trial.”  The committee also stated that a lawyer may not engage in misrepresentation or deceit in reviewing any juror social networking pages.

The committee also considered a lawyer’s obligations if he were to uncover evidence of juror misconduct during the course of monitoring the jurors’ Twitter or other social network pages.  Referring to Rule 3.5 (d) of the New York Rules of Professional Conduct, the committee stated that the lawyer would have an obligation to promptly report the misconduct to the court and may not use the information to benefit the client in settlement negotiations.  Rule 3.5(d) of the New York Rules states:

(d) A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge.  

Note that the New York Rule differs from the ABA Model Rule 3.5, which does not have the same explicit requirement that lawyers must disclose evidence of juror misconduct to the court.  However, Rule 3.3(b) Candor Towards the Tribunal of the ABA Model Rules might arguably impose such a requirement.  Subpart (b) of the Rule was amended in 2002 pursuant to the ABA Ethics 2000 Commission’s  proposal to change “party” to “person” so that the Rule now reads:

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Paragraph [12] of the Comment to Rule 3.3 states:

 …Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

As stated in the following excerpt from the chapter entitled “Candor Towards the Tribunal” (last updated in 2009) as it appears at page 61:301 of the ABA/BNA Lawyers’ Manual on Professional Conduct, part of the E2k’s intent when it amended Model Rule 3.3 was to incorporate provisions from Canon 7 of the ABA Model Code of Professional Responsibility, which had placed an affirmative duty upon a lawyer to notify the court “upon learning of juror misconduct”:

…Significantly, the obligation set out in Rule 3.3(b) arises when a lawyer learns of criminal or fraudulent conduct in the proceeding by any person, not just the lawyer's client or the client's witnesses. Model Rule 3.3, Reporter's Explanation of Changes…

In recommending its revisions to Model Rule 3.3(b), the ABA Ethics 2000 Commission also drew on the Model Code's DR 7-102(B)(2), which stated that a lawyer must inform the tribunal upon receiving information clearly establishing that a person other than the client has perpetrated a fraud upon tribunal, and DR 7-108(G), which provided that a lawyer must promptly notify the court upon learning of juror misconduct or jury tampering. Model Rule 3.3, Reporter's Explanation of Changes.

Rule 3.3(b) leaves no doubt that a lawyer must not sit on her hands and do nothing upon discovering clearly wrongful conduct such as jury tampering or bribery of witnesses. The tribunal must be notified unless measures short of disclosure can remedy the problem. Model Rule 3.3 cmt. [12]. 61 LMPC. 301

DR 7-108(G) of the Model Code stated:
(G) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge.

For further an analysis of the ethical implications of lawyers monitoring jurors’ Twitter and social networking pages, See Temkin, Barry, “Twittering Jurors and the Rules of Professional Conduct: Should Lawyers Avert Their Eyes From Juror Social Network Postings?” 27 Law. Man. Prof. Conduct 201 (2011).

II. “Friending” high-ranking employees of client’s former employer

San Diego County Bar Legal Ethics Committee Opinion 2011-2 (2011) addressed the question of whether a lawyer who represents a client in a wrongful discharge matter could send a “friend” request to upper-level employees of the client’s former employer.   Under the scenario considered by the committee, the lawyer wanted to friend these employees because he had reason to believe they were dissatisfied with their employer and were likely to make unfavorable comments about the employer on their social network pages.  The lawyer would send the friend request but would only give his name and would not disclose that he was the lawyer for the plaintiff in the wrongful discharge case.

Analyzing case law and California Rule of Professional Conduct 2-100, the San Diego committee stated that a lawyer should carefully consider the function these employees performed for their employer before concluding that they should be regarded as unrepresented persons.  The committee cited to the Comment to ABA Model Rule 4.2 Communication with Person Represented by Counsel that states as follows:

…In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

Assuming that the employees in this matter would be considered to be represented parties under Rule 2-100, the committee concluded that the act of sending a friend request constituted an unethical contact with them since the lawyer’s motive in sending the request was to obtain information he could later use in the litigation:

…A friend request nominally generated by Facebook and not the attorney is at least an indirect ex parte communication with a represented party for purposes of Rule 2-100(A). The harder question is whether the statement Facebook uses to alert the represented party to the attorney’s friend request is a communication “about the subject of the representation.” We believe the context in which that statement is made and the attorney’s motive in making it matter.  Given what results when a friend request is accepted, the statement from Facebook to the would-be friend could just as accurately read: “[Name] wants to have access to the information you are sharing on your Facebook page.” If the communication to the represented party is motivated by the quest for information about the subject of the representation, the communication with the represented party is about the subject matter of that representation. 

The committee also found that the lawyer in this scenario would be in violation of his ethical duty not to deceive or to make misrepresentations if he were to make a friend request without disclosing the reasons for his doing so:

…Even where an attorney may overcome other ethical objections to sending a friend request, the attorney should not send such a request to someone involved in the matter for which he has been retained without disclosing his affiliation and the purpose for the request.

Nothing would preclude the attorney’s client himself from making a friend request to an opposing party or a potential witness in the case.  Such a request, though, presumably would be rejected by the recipient who knows the sender by name.  The only way to gain access, then, is for the attorney to exploit a party’s unfamiliarity with the attorney’s identity and therefore his adversarial relationship with the recipient.  That is exactly the kind of attorney deception of which courts disapprove.

Citing to ABA Model Rules 4.1 Truthfulness in Statements to Others and 8.4 Misconduct and California case law, the committee stated that the lawyer’s duty to avoid deception and misrepresentation would apply whether or not the person the lawyer seeks to friend is either represented or is a party to the matter.

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