Whether we are in-house attorneys or outside counsel, all business lawyers try our hardest to avoid disputes. Sometimes things fall apart, however, and we find ourselves navigating the waters of litigation. Very often, proper preparation for litigation demands that we investigate a myriad of parties. These days, one of the tools at our disposal is social media. There is a treasure trove of information available about adverse parties and witnesses. While the standards for acceptable conduct are relatively straightforward (hint: stay away from “deception”), a monkey wrench is thrown into the proverbial machine when we consider the implications of investigating a particular litigation target – potential jurors. A relatively recent opinion from the New York City Bar Association on the topic caused a bit of an uproar in the ethics world.
Ex-parte communications with prospective jurors and members of a sitting jury have long been prohibited. New York City Bar Association, Formal Opinion 2012-2. Also see NY Rule 3.5(a) and (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.”
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.’”
The City Bar didn’t make many waves when it opined that “friending” a juror constituted a prohibited communication. 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 researches the juror’s page and the website sends a message to the juror letting them know that the lawyer viewed the page. How could this happen? Consider this: LinkedIn automatically generates a message that tells a user who has viewed the profile recently. The City Bar considered those type of platform-generated messages to be “communications.” In the Bar’s view, the key factor was the effect that such knowledge would have on the recipient (in this case, the juror). The Bar held, “it is the ‘transmission of,’ ‘exchange of’ or ‘process of bringing’ information or ideas from one person to another that defines a communication,” and that in the world of social media, “this focus on the transmission of information or knowledge is critical.” 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.” 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.” In addition to being intimidating, the knowledge of that research might “tend to influence the juror’s conduct with respect to the trial.” (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) Thus, the key question is whether the juror would have learned of the lawyer’s research. NYC Opinion 2012-2 at 3.
Note that the City Bar made a distinction between whether the lawyer knew that the notice would be generated, or whether it was unknowingly or 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. They said it “might constitute a prohibited communication even if inadvertent or unintended.” 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 result.
In Formal Opinion 466 (April 24, 2014), the ABA’s Standing Committee on Ethics and Professional Responsibility evaluated the same question that the City Bar considered. Knowing that Rule 3.5 prohibits communications with jurors, they considered whether a lawyer could investigate a juror/potential juror’s social media page. The ABA Committee resolved the easy question the same way as the City Bar (overt contact like friending is a prohibited communication). The ABA Committee 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 Committee disagreed with the City Bar. The ABA Committee thinks it’s okay.
According to the ABA Committee, 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 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” (“ESM” stands for “electronic social media” in this opinion).
What’s amazing is . . . that’s it. The opinion is almost devoid of analysis. 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.”
When a lawyer passively investigates a juror’s social media page, that lawyer is reading the details of the page. 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 Committee 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. 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 recipient (in this case, the juror). 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.”
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.