The Internet and, in particular, social media have changed the landscape of federal and state jury instructions, which now prohibit jurors from conducting independent research on the Internet, from sending emails, texts, Facebook postings, tweets or other electronic communications conveying developments in a trial or in deliberations, and from using mobile cameras to record courtroom proceedings. Recently, the New York County Lawyers Association (NYCLA) Committee on Professional Ethics (“Committee”) weighed in on a new area involving jurors and social media: lawyers’ investigation of jurors’ Internet and social media postings before, during and after a trial.
Through Formal Opinion No. 743, issued on May 18, 2011, the Committee opined that it is proper and ethical under the New York Rules of Professional Conduct (RPC) 3.5, 4.1, and 8.4 for a lawyer to undertake a pretrial search of a prospective juror’s social networking sites, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to “friend” jurors, subscribe to their Twitter feeds, send tweets to the jurors or otherwise contact them. The Committee also opined that, during the evidentiary or deliberation phases of a trial, a lawyer may visit a juror’s publicly available Facebook, Twitter and other social networking sites, but must not “friend,” send tweets or email messages to, or otherwise communicate in any way with a juror, or “act in any way by which the juror becomes aware of the monitoring.” Moreover, the lawyer may not make any misrepresentations or engage in deceit, indirectly or directly, in reviewing jurors’ social networking sites. The Committee noted that, in the event a lawyer learns of juror misconduct, the lawyer may not unilaterally act upon that knowledge (e.g., in settlement discussions with the opposing side), but must promptly comply with Rule 3.5(d) and inform the court of such misconduct.
As the Committee’s opinion makes clear, there is a tension between avoiding ex parte contact with jurors and keeping the court reasonably informed about juror misconduct. On one hand, attorneys must avoid all contact with jurors through their social media sites; on the other hand, attorneys must inform the court immediately if they learn through social media of jurors’ misconduct. There is little doubt that much juror misconduct goes unreported because attorneys are forbidden from accessing jurors’ revelatory non-public musings undertaken through social media.
The Committee’s fundamental assumption is that active monitoring of which a juror becomes aware constitutes an impermissible communication, as it may tend to influence the juror’s conduct with respect to the trial at hand. But it will be interesting to see how the proscription that attorneys must not “act in any way by which the juror becomes aware of the monitoring” plays out in real life, given the complexity and continuing evolution of social media services – services that regularly update their respective interfaces, features, privacy controls and notification options.
Take, for example, Twitter, which currently lets each account holder set his or her notification settings to notify the account holder every time he or she is “followed” by someone new. However, in order to read a Twitter user’s tweets, one only needs to visit the user’s Twitter feed URL, not affirmatively “follow” the user – with the important exception of Twitter users who have used the site’s account settings to enable “Tweet privacy” and ensure that only pre-approved individuals can see their Tweets.
And consider LinkedIn, which currently offers a “Who’s Viewed Your Profile?” feature. LinkedIn’s account settings enable each account holder to select which pieces of his or her profile information will be visible to another LinkedIn user whose profile he or she visits; settings include “Your name and headline (Recommended),” which would display the visiting account holder’s name, title, company and general location, “Anonymous profile characteristics such as industry and title,” and “You will be totally anonymous.”
These and other social media services may well change over time. Thoughtfully, the Committee’s opinion notes that it “is intended to apply to whatever technologies now exist or may be developed that enable the account holder to learn the identity of a visitor.”