Lawyers must be wary of any communication with jurors in cases the lawyers are litigating. It is universally recognized that such contact is forbidden as it could sway or influence a juror’s decision-making, even unconsciously. But how attenuated can such contact be and still be considered to fall within the definition of forbidden communication? A look at how various authorities have addressed the topic of viewing a juror’s LinkedIn account is instructive.[1]
Most authorities agree that that it would be a prohibited ex parte communication for a lawyer, on his own or through an agent, to send an “access request” to view the private portion of a juror’s or potential juror’s Internet presence.[2] But Bar authorities in New York have gone a step further. The popular professional social media network LinkedIn makes a user’s professional history viewable by other users. When a user views another’s LinkedIn page, an automatic notice is generated. The New York City Lawyers’ Association and the New York City Bar Association have opined that even such inadvertent contact with a prospective juror or sitting juror caused by an automatic notice may be considered a technical ethical violation:
More specifically, and based on the Committee’s current understanding of relevant services, search engine websites may be used freely for juror research because there are no interactive functions that could allow jurors to learn of the attorney’s research or actions. However, other services may be more difficult to navigate depending on their functionality and each user’s particular privacy settings. Therefore, attorneys may be able to do some research on certain sites but cannot use all aspects of the sites’ social functionality. An attorney may not, for example, send a chat, message or “friend request” to a member of the jury or venire, or take any other action that will transmit information to the juror because, if the potential juror learns that the attorney seeks access to her personal information then she has received a communication. Similarly, an attorney may read any publicly-available postings of the juror but must not sign up to receive new postings as they are generated. Finally, research using services that may, even unbeknownst to the attorney, generate a message or allow a person to determine that their webpage has been visited may pose an ethical risk even if the attorney did not intend or know that such a “communication” would be generated by the website.[3]
This is a strange outcome indeed. A “communication” of which the lawyer may not even be aware, and which the lawyer did not themselves generate, containing no information other than that the lawyer viewed information which the juror himself placed in the public, becomes the basis of a claim that the lawyer has committed an ethics violation.
The American Bar Association, whose Model Rules of Professional Responsibility form the basis for most states’ rules regarding attorney conduct, has since adopted a more measured approach to the issue. In Formal Opinion 466, the ABA agreed
that a lawyer may not personally, or through another, send an access request to a juror. An access request is an active review of the juror’s electronic social media by the lawyer and is a communication to a juror asking the juror for information that the juror has not made public. This would be the type of ex parte communication prohibited by Model Rule 3.5(b). This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.[4]
However, the ABA criticized the New York authorities’ interpretation of the automatically-generated notice:
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. 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.[5]
The ABA went on to advise judges to fully inform jurors on the topic:
Equally important, judges should consider advising jurors during the orientation process that their backgrounds will be of interest to the litigants and that the lawyers in the case may investigate their backgrounds, including review of their ESM and websites. If a judge believes it to be necessary, under the circumstances of a particular matter, to limit lawyers’ review of juror websites and ESM, including on ESM networks where it is possible or likely that the jurors will be notified that their ESM is being viewed, the judge should formally instruct the lawyers in the case concerning the court’s expectations … Discussion by the trial judge of the likely practice of trial lawyers reviewing juror ESM during the jury orientation process will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network.
The ABA’s common-sense approach has come under fire in some segments of the commentariat. One article rather hysterically argued:
The ABA opinion draws the following analogy: an automatic subscriber notification 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.” The analogy proves the error of the ABA opinion’s conclusion. We believe a more apt analogy is this: A lawyer purposefully drives down a juror’s street, observes the juror’s property (and perhaps the juror herself), and has a sign that says he is a lawyer and is engaged in researching the juror for the pending trial, knowing that a neighbor will see the lawyer and will advise the juror of this drive-by and the signage.[6]
Lost in this analysis is any indication of how the quiet viewing of publicly-available information, which the juror himself made available, is anything akin to the situation the authors describe. Nor is it evident how they draw this analogy when no one is made aware of the viewing except the juror himself, and this awareness arrives in the form of an automatic notice indicating that various people have viewed the juror’s profile.
Nevertheless, even the ABA acknowledges that an attorney’s right to view juror’s public information is not unlimited:
While this Committee concludes that ESM-generated notice to a juror that a lawyer has reviewed the juror’s information is not communication from the lawyer to the juror, the Committee does make two additional recommendations to lawyers who decide to review juror social media. First, the Committee suggests that lawyers be aware of these automatic, subscriber-notification features. By accepting the terms of use, the subscriber notification feature is not secret. As indicated by Rule 1.1, Comment 8, it is important for a lawyer to be current with technology. While many people simply click their agreement to the terms and conditions for use of an ESM network, a lawyer who uses an ESM network in his practice should review the terms and conditions, including privacy features – which change frequently – prior to using such a network. And, as noted above, jurisdictions differ on issues that arise when a lawyer uses social media in his practice. Second, Rule 4.4(a) prohibits lawyers from actions “that have no substantial purpose other than to embarrass, delay, or burden a third person . . .” Lawyers who review juror social media should ensure that their review is purposeful and not crafted to embarrass, delay, or burden the juror or the proceeding.[7]
As with all matters relating to contact between an attorney and juror (or represented party), lawyers are cautioned to be aware of the nature of the technology they are using as well as the view that their individual jurisdiction has on issues like automated, unintentional notices being sent to profile owners, and whether such notices constitute improper communications under applicable law.