November 2013 - Legal Ethics, Social Media, and the Jury
As you look at the panel of prospective jurors in the courtroom, you certainly would like to know more about them in order to ascertain how they might view your client and your case. You are curious about the potential biases prospective jurors might hold, and concerned about whether your voir dire opportunities will uncover significant areas of prejudice. Mindful of your ethical obligations, you steer clear of direct contact with the jurors. During jury selection, you conduct your voir dire on behalf of your client. Asking whether anyone in the venire knows your adversary or her family, the panel remains silent. When you ask the jurors whether any of them has a Facebook account, one juror in particular answers no. Another juror acknowledges having a Facebook account, but shares little further information. You may think, “Nothing remarkable there.”
Fast forward. After an adverse verdict against your client, you learn that not one, but two, of the jurors are Facebook friends with the adverse party. Both jurors more or less concealed that information during the voir dire. Now you are talking about a new trial, and the judge is considering whether you should have investigated the jurors’ Facebook accounts during jury selection. Next time, to learn more about your jurors earlier, can you, or must you, in order to fully address your client’s interests, investigate your prospective jurors’ social media?
Ethical Duties Toward Jurors
Several core ethical concerns bear on this scenario, including the duty of competence, the duty of honesty, and prohibitions on communication with jurors. These intersect with the power (and mystery) of technology. Lawyers’ professional responsibilities include a duty to perform work competently, that is, with diligence, learning, and skill. Cal. R. Prof. Conduct 3-110. Recent revision to the American Bar Association rule on competence requires lawyers to both understand the basic features of technology and to be informed regarding the risks and benefits associated with the use of relevant technology. Model Rules of Prof’l Conduct R. 1.1 cmt 6 (2012). Under the California rules, the duty of competence includes acquiring sufficient learning and skill before performance is required. Cal. R. Prof. Conduct 3-110. The duty of competence may require lawyers to conduct an online investigation of jurors, including looking at social media. To do that, lawyers must understand how to utilize social media without violating prohibitions on contacting jurors.
Ethical restrictions on lawyer contact with jurors preclude communicating, directly or indirectly, with anyone the lawyer knows to be a member of the jury venire, and with any juror during trial. Cal. R. Prof. Conduct 5-320. California’s ethics rules also prohibit lawyers from directly or indirectly conducting an out-of-court investigation of a juror or venire member in a manner likely to influence the person’s state of mind in connection with jury service. Id. In addition, lawyers have a duty to report to the court any improper conduct by a member of the venire or a juror. Id. While post-trial communication with jury members after the discharge of the jury generally is permissible under California’s rules, lawyers may not make comments to members that are intended to harass or embarrass jurors or to influence a juror’s actions in future jury service. Id.
The third major relevant area of ethics for our purposes is the duty of honesty. California law makes attorney deceit a misdemeanor. Cal. Bus. & Prof. Code § 6128(A). In addition, impersonating another actual person by electronic means can be a misdemeanor. Cal. Penal Code § 528.5. California law prohibits lawyers from engaging in acts involving dishonesty, whether as an attorney or otherwise, and requires that lawyers employ such “means only as are consistent with truth.” Cal. Bus. & Prof. Code § 6106; Cal. Bus. & Prof. Code § 6068(d). Finally, lawyers directing a third party’s investigatory efforts have an ethical duty to supervise non-lawyers working under their direction to assure that such subordinates operate in an ethical manner. See Cal. R. Prof. Conduct 3-110, Discussion.
Vetting the Venire
As a competent lawyer, do you have a duty to conduct online research regarding potential jurors? Courts have begun to endorse online investigation regarding jurors during the jury selection process, but some judges have expressed reservations. One court held that the trial judge should have permitted a lawyer to use his computer to conduct research on the venire panel. Carino v. Muenzen, A-5491-08T1, 2010 WL 3448071 (N.J. Super. Ct. App. Div. Aug. 30, 2010). In another case where a juror concealed information about her litigation history during questioning in the voir dire phase of the trial, the court indicated that a party must use reasonable efforts to investigate jurors’ litigation backgrounds during jury selection, or prior to the jury’s being empanelled, and report relevant information to the court. Johnson v. McCullough, 306 S.W.2d 551, 558-59 (Mo. 2010) (juror concealed information concerning her litigation history during voir dire, but information was readily available through automated case record service). However, the practice of scrutinizing jurors’ social media, while becoming more commonplace, may not yet have risen to the level of an affirmative duty. See Sluss v. Com., 381 S.W.3d 215 (Ky. 2012) (two jurors may have been Facebook friends with the mother of the victim during trial, and made misrepresentations during voir dire, from which the factual scenario described above is loosely derived).
Two ethics opinions from New York address the lawyer’s duty of competence in connection with this issue, and are not so equivocal as the cases just referenced. Both agree that the duty of competence requires that lawyers research social media of jurors and potential jurors, but only so long as no prohibited “communication” occurs. N.Y. County Formal Opn. 743 (2011); N.Y. City Bar Formal Opn. 2012-2 (2012). This guidance indicates that lawyers may read public postings on jurors’ social media pages before and during trial, with several important provisos discussed below. In addition, a lawyer has a duty to research and understand the mechanics of any social media service or website that that lawyer uses to conduct such research, in order to avoid inadvertent prohibited communication with jurors. Id.
Bearing in mind that lawyers are prohibited from communicating with jurors, both New York opinions indicate that a lawyer may not “friend” jurors on Facebook, or otherwise connect with jurors or potential jurors through social media. The term “communication” is construed in the broadest possible sense, including any messaging a juror may receive as a result of a lawyer’s viewing of the juror’s social media pages, and including automated communication generated by the technology following contact with the site, without regard for the lawyer’s intent to communicate. This is consistent with the San Diego County Bar’s ethics opinion indicating that a “friend” request is at least an indirect, and therefore prohibited, communication. San Diego County Bar Legal Ethics Opn. 2011-2 (2011) (discussing prohibited contact with adverse parties). Just viewing a person’s social media site can leave a record of the visit. For example, a juror may receive notice that particular persons have visited the juror’s LinkedIn page, or receive a communication from the social media service that, for an extra fee, the juror can see everyone who has visited the person’s site for a certain period of time. Broadly construed, this would violate the prohibition on communication.
In addition, lawyers may not subscribe to jurors’ Twitter accounts, nor send Tweets to jurors, since following a juror on Twitter would result in a notification to the juror, resulting in improper communication. Chats and messaging with jurors or potential jurors via social media are also off limits for lawyers. The key issue here is gaining an understanding of the social media site you are visiting to determine what actions of the lawyer or her proxy will result in a juror learning of the contact. Such contact runs the risk of improperly influencing or intimidating a juror.
Both New York ethics opinions also caution lawyers not to use deceitful contact in viewing a juror’s social networking sites, and advise lawyers not to have proxies contact jurors using deception or misrepresentation when conducting jury research. Despite this common-sense application of the rules against deceit, some lawyers have adopted false personas online and other lawyers have directed third parties (such as their paralegals) to do so. John G. Browning, Keep Your “Friends” Close and Your Enemies Closer: Walking the Ethical Tightrope in the Use of Social Media, 3 St. Mary’s Journal of Legal Malpractice & Ethics 204, 225, 228-29 (2013) (discussing prosecutors’ posting under pseudonyms online and attorneys’ delegating online investigation to paralegal). The use of deception through “over-zealous efforts to effectuate a legal strategy” reflects a disregard of ethical duties that can constitute moral turpitude. See In re Maloney, 4 Cal. State Bar Ct. Rptr. 774 (2005); Cal. Bus. & Prof. Code § 6106.
Juror tweeting and blogging during trial is difficult to detect, and yet, can lead to mistrials. N.Y. City Bar Formal Opn. 2012-2. Courts have adopted a range of practices to prevent use of social media by jurors, including use of jury instructions and admonitions, frequent reminders, use of posters, confiscation of devices, warnings about penalties (fines and contempt), distribution of copies of warnings, and asking jurors to sign formal statements of compliance. Meghan Dunn, Juror’s Use of Social Media During Trials and Deliberations—A Report to the Judicial Conference Committee on Court Administration and Case Management, 8-9 (2011) available at http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf. While detected conduct is relatively rare, should a lawyer become aware via social media that a juror is Tweeting, posting, or blogging about a case, or otherwise discussing the case via social media, the attorney’s ethical obligation is to advise the court regarding such activity.
Gone are the days when lawyers tried to discern juror predilections based on mere observations of their tee-shirt slogans and the type of reading materials jurors brought with them into the courtroom. In today’s digital environment, analysis of social media in investigation of potential jurors can yield important information relevant to possible bias and prejudice of jurors. Monitoring social media of jurors during trial may reveal misconduct by empanelled jurors. Navigating the social media maze proves challenging as the functionality of technology changes. Competent lawyers will utilize this resource appropriately and inform themselves regarding the extent to which the investigation of jurors through social media would generate a “communication” with jurors, as construed in the broadest sense, to avoid ethical violations.
Carole Buckner is the principal of Buckner Law Corp. in Irvine, and she serves as co-chair of the OCBA’s Professionalism and Ethics Committee. She is Dean of the School of Law at Abraham Lincoln University, and Chair of the Los Angeles County Bar Association’s Professionalism and Ethics Committee. She can be reached at firstname.lastname@example.org. The views set forth here are her own.