With the rampant expansion of social media and online technologies over the past decade, it is no surprise that Facebook, MySpace, Twitter, Instagram, YouTube and blogs have made their way into the courtroom, pervaded the jury box, and even pierced the veil of judges' chambers. This expansion of social media technologies has raised many questions about the use of the information that can be obtained and the ways attorneys go about obtaining that information. This article addresses some of the ethical issues that can arise when an attorney turns to social media platforms or online technology during a trial.
Social media research has been described as the wild West by some legal commentators, and for this reason bar associations throughout the country have started establishing parameters for ethical online social media research at trial. About a year ago, during the summer of 2012, the Professional Ethics Committee of the New York City Bar Association (NYCBA) issued Formal Opinion No. 2012-2, titled "Jury Research and Social Media." To date, the opinion appears to be the most comprehensive analysis of the subject.
Formal Opinion 2012-2 addresses the ethical restrictions that apply to an attorney's use of social media websites to research potential or sitting jurors. The starting point for this analysis was the New York Rules of Professional Conduct (RPCs) and in particular, RPC 3.5, which addresses the maintenance and partiality of tribunals and jurors. Among other things, RPC 3.5 states that "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." This rule is similar to New Jersey RPC 3.5, titled "Impartiality and Decorum of the Tribunal." Under New Jersey RPC 3.5(c) a lawyer shall not communicate ex parte with a juror or prospective juror except as permitted by law.
Social Media Research of Jurors During the Jury Selection Process
In light of the language in New Jersey's and New York's versions of RPC 3.5, one of the ethical issues that arises most often involves the use of social media research during the jury selection process. Formal Opinion 2012-2 analyzed this issue and found that "[i]f a juror were to (i) receive a 'friend' request (or similar invitation to share information on a social network site) as a result of an attorney's research, or (ii) otherwise to learn of the attorney's viewing or attempted viewing of the juror's pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification."1
Formal Opinion 2012-2 found that the same attempts to research a juror might constitute a prohibited communication even if inadvertent or unintended, because NY RPC 3.5 does not contain a mens rea requirement. The same appears to be true with NJ RPC 3.5, which does not contain a mens rea requirement, and by its express terms prohibits all ex parte communications with jurors, even if inadvertent.
Thus, if an attorney does not know the functionality of a social media platform, he or she should proceed with caution in conducting research, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation of the rules of professional conduct.2 Fortunately, most search engines for social media platforms do not permit registered members to learn who accessed their information. LinkedIn, however, allows its registered members to learn of individuals who viewed their profiles, and attorneys should understand the functionality of the LinkedIn search engine and other similar search engines to minimize the risk of unintended communications with prospective jurors.
Although some attorneys may question if Internet research on jurors is even permissible during voir dire, the New Jersey Appellate Division found the practice acceptable. In Carino v. Muenzen,3 a medical malpractice action, the plaintiff's counsel was using Google to conduct research on potential jurors in the venire. When this was brought to the attention of the trial judge, the court prohibited the research because: 1) the plaintiff's counsel did not provide advance notice to the court and opposing counsel, and 2) the judge wanted to create an "even playing field," since the defendant's counsel was not conducting the same research.4
On appeal, the plaintiff's counsel argued that the trial court abused its discretion during jury selection by precluding him from accessing the Internet to obtain information on prospective jurors. The Appellate Division noted that no authority exists for the trial court's determination that counsel is required to notify an adversary and the court in advance of accessing the Internet during jury selection or any other part of a trial. The Appellate Division also criticized the trial court's effort to create an "even playing field," noting that Internet access was open to both counsel. It thus concluded that the trial court acted unreasonably in preventing use of the Internet by the plaintiff's counsel, but nevertheless affirmed the judgment because the plaintiff's counsel had not demonstrated any prejudice resulting from the failure to use Internet research on potential jurors.5
Assuming access to the Internet is available, Carino v. Muenzen provides support for the principle that online research of potential jurors is permissible in New Jersey courts.
A federal court in the Eastern District of New York recently issued a similar ruling in U.S. v. Watts.6 There, the defendant's counsel in a criminal matter filed a motion to permit a jury consulting firm to perform Internet research on potential jurors. The initial application to the court requested the name of jurors in the jury pool in advance of when the venire appeared, so research could be performed in advance. This portion of the application was denied. The court, however, allowed the parties to conduct Internet research on potential jurors during the venire, on the following three conditions: 1) the parties could not make unauthorized or improper direct contact with prospective or current jurors, including using social networking platforms that would leave a record with the account holder of having been searched; 2) the parties were barred from informing jurors that Internet searches were being conducted regarding them; and 3) if any party had reason to believe a juror may have neglected to disclose information bearing on his or her fitness to serve as a juror, that party was required to inform the court and opposing counsel immediately.7 On this last restriction, the court noted that an "attorney's duty to inform the court about suspected juror misconduct trumps all other professional obligations, including those owed a client."8
Not all courts, however, agree that Internet research on jurors is permissible or even beneficial. Recently, a judge in Montgomery County, Maryland, denied a request to allow a defense attorney in a child sex abuse case to use the Internet to research potential jurors during the jury selection process.9 The judge believed Internet research on potential jurors was totally inappropriate and could have a chilling effect on jury service if individuals knew they were going to be "Googled" as soon as they walked into the courthouse.10
Social Media Research of Jurors During Trial
A second issue that arises with social media research is whether attorneys can continue to research and monitor the actions of sitting jurors during a trial. In this regard, the same ethical restrictions that apply to communications with potential jurors also apply to sitting jurors. These restrictions include the prohibition on an attorney communicating directly and indirectly with a sitting juror. Despite these restrictions, attorneys are well served to engage in unobtrusive monitoring of jurors during trial to ensure an unbiased, independent jury.11 Indeed, in a recent survey by the Federal Judicial Center, 79 percent of judges who responded said they had no way of knowing whether jurors had violated a social media ban.12 As such, social media monitoring is often left in the hands of counsel and, in some higher profile cases, the media. This was the case in the corruption trial of former Baltimore Mayor Sheila Dixon. There, a newspaper reported that certain members of the jury were communicating with each other about the case via Facebook.13 This report served as one of the bases for the mayor to seek a new trial. Before the court could rule on the application, however, a plea was entered. Nevertheless, the juror conduct and media attention underscore the need to monitor sitting jurors.
Another instance of jurors' use of social media and the need for monitoring occurred in Sluss v. Commonwealth of Kentucky.14 In Sluss, the defendant was convicted of murder and several other criminal counts arising from a motor vehicle death following a highly publicized trial. After the trial, it came to light that two of the jurors were Facebook friends with the victim's mother. The defendant appealed the conviction and argued, among other things, that the trial court erred in denying his motion for a new trial based on jury misconduct. The defendant contended that the jurors being Facebook friends with the victim's mother was evidence of misconduct.
On appeal, the Kentucky Supreme Court addressed the issue of who on Facebook is actually a friend, as opposed to a mere negligible connection who blindly accepts a friend request and has no real relationship. While opining that a juror who is a Facebook friend with a family member of a victim, standing alone, is probably not enough evidence to presume juror bias sufficient for a new trial, the Court remanded the matter for further inquiry to address "the extent of the interaction and the scope of the relationship" between the two jurors and the victim's mother, and whether juror misconduct occurred.15 In so concluding, the Court stated that "it is the closeness of the relationship and the information that a juror knows that frames whether that juror could reasonably be viewed as biased."16
Another example of a juror's misuse of social media was discussed in U.S. v. Fumo,17 which involved the highly publicized prosecution of Pennsylvania State Senator Vincent Fumo.
The portion of the appeal relevant to social media involved a juror posting various comments on Facebook. After it was reported by the media that a juror had been posting on Facebook about the trial, the juror deleted the comments from his Facebook page. The most discussed post involved the juror's comment that "This is it ... no looking back now!" As a result, the court reviewed the Facebook posts and held an in camera review in which it asked the juror about his activity and general media consumption. The juror claimed he had accidentally seen the news report regarding his Facebook posts when a program he had been watching on television ended and the news began, but otherwise indicated he took his responsibilities and obligations as a juror seriously. Based on this review, the trial court concluded that most of the Facebook posts involved what the court deemed "ramblings" that were "so vague as to be virtually meaningless."18 It thus concluded that the juror's Facebook posts were not substantially prejudicial.
On appeal, the Third Circuit affirmed, finding the trial court did not abuse its discretion in denying the defendants' motion for a new trial. It largely agreed that the juror's Facebook posts were "nothing more than harmless ramblings having no prejudicial effect," and there was no evidence his extra-jury misconduct had any prejudicial effects on the defendants.19
Nonetheless, the implications of jurors' improper use of social media during a trial are high. As noted by the Third Circuit in Fumo, "a juror who comments about a case on social media may engender responses that include extraneous information about the case or attempts by third-parties to exercise persuasion or influence."20 When attorneys are aware of a juror's use of social media in a manner they believe is improper, they have an obligation to report the misconduct to the court and their adversary.21 And, once reported, a court has a number of remedies at its disposal.
In New Jersey, these remedies could include imprisonment and/or civil fine. These remedies were discussed in the recent decision issued by Assignment Judge Peter Doyne in In re Daniel Kaminsky.22 Kaminsky involved contempt proceedings against a juror for conducting Internet research during deliberations, in direct violation of the court's explicit instructions not to conduct such research. The situation came to light after two of the charged juror's fellow jury members reported they thought the research tainted the deliberations, which ultimately resulted in a hung jury. In a well-reasoned opinion outlining the implications of the ease of Internet research on modern juries, Judge Doyne held the juror in contempt and fined him $500. In so holding, Judge Doyne stated, "[a] clear message apparently need[s] be sent [that] the offense of contemptuously violating a court's instruction concerning internet use is serious, with consequential ramifications."23
Similarly, in Juror Number One v. Sup. Ct. of Sacramento,24 a California court, upon receiving a report that a juror posted items on his Facebook account concerning a criminal trial while it was in progress, ordered the juror to execute a consent form authorizing Facebook to release for in camera review all items he posted during the trial. The juror filed a petition for writ of prohibition that challenged the order on the basis that it was in violation of the Stored Communications Act, his Fourth and Fifth Amendment rights and his rights to privacy. The court made short work of the arguments and found a juror had no expectation of privacy in his or her Facebook posts and, in any event, privacy rights do not trump the litigants' rights to a fair trial free from juror misconduct.
Courts in Florida and Texas also have sent a clear message to jurors who engage in the improper use of social media during a trial. One Florida juror was held in contempt and sentenced to three days in jail when it came to light that he 'friended' a defendant in a personal injury case.25 Similarly, a Texas man was sentenced to two days of community service for friending a plaintiff.26
Social Media Research to Impeach a Witness During Trial
A third issue that arises from social media research at trial involves whether counsel can use this technology to obtain information to impeach a witness. In analyzing this issue, it is important for an attorney to understand that social media platforms are no different than direct or indirect communication with any individual. Accordingly, attorneys should re-familiarize themselves with NJ RPC 4.1, 4.2, 8.4(c) and 8.4(d) before conducting a social media search for impeachment evidence. These Rules of Professional Conduct provisions prevent, among other things, attorneys from doing the following:
- making materially false statements of fact or law to a third person, NJ RPC 4.1
- communicating with a person the lawyer knows or should know is represented by counsel, NJ RPC 4.2
- engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, NJ RPC 8.4(c), and
- engaging in conduct that is prejudicial to the administration of justice, NJ RPC 8.4(d).
In light of these RPC provisions and other authorities, it is wholly permissible for an attorney to access and review the public social network pages of a witness at trial to search for impeachment material.27 A lawyer also can engage in truthful friending of an unrepresented party28 in a manner that does not involve trickery or deception to obtain information.29
What an attorney cannot do is mislead a witness or potential witness in order to obtain information about them. Two defense attorneys recently were charged with ethics violations by the Office of Attorney Ethics of the Supreme Court of New Jersey for allegedly causing their paralegal to friend the plaintiff in a personal injury case in order to access information on the plaintiff's Facebook page that was not otherwise available to the public.30 The attorneys contended they never instructed the paralegal to friend the plaintiff, but simply instructed her to conduct online social media research on him.31
In light of this story, if an attorney is going to conduct research on Facebook or another social media platform in order to obtain non-public information, it is important the attorney disclose his or her true identity and the truthful reason for the connection request.32
Social Media Use by Attorneys
Finally, it goes without saying that attorneys, like everyone else, should be cognizant of their own use of social media. At least one judge in Galveston, Texas, utilized Facebook to catch an attorney who requested a continuance, allegedly because of the death of her father. The attorney, however, had recently posted a string of status updates on Facebook portraying a week of drinking and partying.33 In a separate incident, the same judge caught another attorney griping about having to handle a motion before her. Thus, just as attorneys are well advised to instruct their clients to maintain private Facebook pages, they too must be cognizant of their social media footprint and their obligation of candor toward a tribunal.
While some readers may seek to avoid the ethical issues discussed in this article entirely, by not using social media at all, this may not be the right answer. At least one court has held that an attorney may be under a limited obligation to use certain new technologies.
In Johnson v. McCullough,34 the Supreme Court of Missouri arguably created a limited duty for lawyers to research members of the venire. During voir dire, the plaintiff's counsel asked if any of the panelists had been involved in prior litigation. While many panelists responded, one member did not, and she eventually became a sitting juror. After the jury returned the verdict for the defendant, the plaintiff's counsel searched a litigation database and found the non-responsive juror had been a defendant in multiple debt collection cases and a personal injury case. The plaintiff filed a motion for a new trial, alleging jury non-disclosure based on the juror's failure to disclose her involvement in prior litigation. The trial court granted the motion, and the Supreme Court of Missouri affirmed.
The Missouri Supreme Court stated that "[w]ith the relative present day ease of procuring the venire member's prior litigation experiences, via Case.net, '[w]e encourage counsel to make such challenges before submission of a case whenever practicable.'"35 The Court further noted that, "to preserve the issue of a juror's non-disclosure, 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."36
While most courts have not gone as far as the Missouri Supreme Court, a lawyer who fails to acquire at least a basic understanding of these new technologies does so at his or her—or perhaps more importantly, his or her client's—own peril.
Conclusion
In sum, social media has become a particularly effective arrow in the quiver of technologically savvy attorneys. While social media use in the litigation context continues to evolve, it is important that attorneys keep in mind the potential ethical implications of its use, for research or otherwise, and to avoid any action by them or their subordinates that could be construed as dishonest or deceitful.
Footnotes
1. Assoc. of Bar of St. of N.Y. Eth. Op. 2012-2, *4-7 (2012).
2. Id. at *6.
3. 2010 N.J. Super. Unpub. LEXIS 2154 (App. Div. 2010), certif. denied, 2011 N.J. LEXIS 1898 (2011).
4. Id. at *9-10.
5. Id.
6. 2013 U.S. Dist. LEXIS 42242 (E.D.N.Y. March 22, 2013).
7. Id. at *103-104.
8. Id. at *104 (quoting United States v. Daugerdas, 867 F. Supp. 2d 445, 484 (S.D.N.Y. 2012)). While some attorneys may be skeptical of social media research on prospective jurors, the benefits of such research are potentially immense. For example, a trial consultant in Philadelphia stated that in a product liability case in which her client was representing the defendant, she discovered through online research that a juror had posted on Facebook that one of the juror's heroes was Erin Brokovich. This research helped the trial consultant's client decide to remove the juror from the panel. B. Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters (Feb. 17, 2011). Likewise, in a case in the Circuit Court of Jackson, Mississippi, Khoury v. Conagra, social media research enabled attorneys for the defendant, Conagra, to have a juror dismissed for anti-corporate sentiments after it was discovered he maintained a corporate blog called "The Insane Citizen: Ramblings of a Political Madman," which included statements such as "F—- McDonald's." Id.; see also Khoury v. Conagra Foods, Inc., 368 S.W.3d 189 (Mo. Ct. App. 2012).
9. Barned-Smith, Montgomery judge denies Internet searches for jury selection, Gazzette.Net (May 15, 2013).
10. Id.
11. But see U.S. v. Kilpatrick, 2012 U.S. Dist. LEXIS 110165 (E.D. Mich. Aug. 7, 2012) (during the high-profile prosecution of Detroit's former mayor, the court impaneled an anonymous jury and held that parties were not permitted to monitor jurors' social media use, but the court would do so).
12. S. Eder, Jurors' Tweets Upend Trials, Wall Street Journal (March 5, 2012). Interestingly, as pointed out by Judge Peter E. Doyne in In re Daniel Kaminsky, 2012 N.J. Super. Unpub. LEXIS 539, *5-9 n.3 (March 9, 2012), which is discussed in greater detail infra, Judge Shira A. Scheindlin of the Southern District of New York attempts to prevent the problem of juror Internet research by requiring jurors to sign, under penalty of perjury, a pledge agreeing to obey the court's Internet use instructions in highly publicized criminal trials.
13. Eder, supra, note 10.
14. 381 S.W.3d 215 (Ky. 2012).
15. Id. at 223.
16. Ibid.
17. 655 F.3d 288 (3d Cir. 2011).
18. Id. at 299.
19. Id. at 306.
20. Id. at 305.
21. See Formal Opinion 2012-2, supra, note 1; NJ RPC 3.3; U.S. v. Watts, 2013 U.S. Dist. LEXIS 42242, *104 (E.D.N.Y. March 22, 2013). Additionally, it appears to be a well-settled concept that a sitting juror commits misconduct by violating her oath, or by failing to follow the instructions and admonitions given by the trial court. As such, a juror may well have an obligation to report fellow juror misconduct either by accepting the oath or, perhaps more pointedly, if instructed by the court to do so.
22. 2012 N.J. Super. Unpub. LEXIS 539 (N.J. Super. Ct., Law Div., Bergen Cty., March 9, 2012).
23. Id. at *32.
24. 206 Cal. App. 4th 854 (2012).
25. See Eder, supra, note10; see also R. Eckhart, Juror Jailed over Facebook Friend Request, Sarasota Herald-Tribune (Feb. 16, 2012).
26. See Eder supra, note 10.
27. N.Y.S.B.A. Eth. Op. 843.
28. An attorney cannot friend a party the attorney knows or should know is represented by counsel. NJ RPC 4.2.
29. Formal Opinion 2012-2, supra note 1.
30. See M. Gallagher, Hostile Use of 'Friend' Request Puts Lawyers in Ethics Trouble, N.J. Law Journal (Aug. 30, 2012).
31. In Sept. 2012, before the ethics hearings began, the two lawyers filed suit against the Office of Attorney Ethics in the Superior Court of New Jersey seeking declaratory and injunctive relief. See M. Gallagher, Facebook Case Tests Courts' Power To Review Ethics Tribunals' Actions, N.J. Law Journal (July 2, 2013). On Jan. 22, 2013, the lower court dismissed the case, Robertelli v. OAE, for lack of jurisdiction. Id. The case is pending in the Appellate Division. Id.
32. San Diego County Bar Assoc., Legal Ethics Comm. Op. No. 2011-2 (May 24, 2011).
33. See M. McDonough, Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches, A.B.A. Chicago (July 31, 2009).
34. 306 S.W.3d 551 (Mo. 2010).
35. Id. at 558.
36. Id. at 559.
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