Published November 2014 by David P. Ackerman* and Jessica B. Rosenthal*
Many trial lawyers use publicly available searching devices to look into a litigant’s or witness’s background. Readily available searches can uncover real estate transactions, civil and criminal litigation, publicly recorded liens and the like. But you would be missing out if you stopped there. Social media can also be an informative tool in looking into a person’s background. Many lawyers have used similar tools in researching the backgrounds of prospective jurors. The ABA recently spoke about the propriety of doing so for jurors. Like adverse parties, lawyers may not generally communicate directly with jurors and so the question arises:
Is checking a juror’s social media site a prohibited communication?
Ex parte attorney communication with prospective jurors and members of a sitting jury has long been prohibited by the Rules of Professional Conduct. Pursuant to Rule Regulating the Florida Bar 4-3.5(d), modeled after ABA Model Rule 3.5, a lawyer may not communicate with a potential juror leading up to trial or any juror during trial unless authorized by law or court order. As the internet and social media have significantly changed the ways in which we communicate, conducting juror research while complying with Rule 4-3.5(d) has become increasingly complicated. The ABA’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 466 advising on where the line should be drawn between properly investigating jurors and improperly communicating with them. While a Florida Ethics Opinion has yet to be issued, The Florida Bar staff advises, in the absence of a Florida opinion, it follows the ABA.
According to Formal Opinion 466:
- A lawyer may “passively” review a potential juror’s or sitting juror’s public presence on the internet, but cannot communicate with a juror. A passive review is a review of the juror’s social media networks or other websites that are open to the public. A lawyer is prohibited from either personally, or through another, sending an access request to a juror’s social media network.
- The fact that a juror or a potential juror may become aware that a lawyer has reviewed his or her social media site, through a network-generated notice, does not constitute an improper communication. But some states have concluded that such network-generated notice to the juror is an improper communication from the lawyer. See Ass’n of the Bar of the City of N.Y. Comm. On Prof’l Ethics, Formal Op. 2012-2 (While the committee found that the communication would “constitute a prohibited communication if the attorney was aware that her actions” would send such a notice, the committee took “no position on whether an inadvertent communication would be a violation of the Rules.”)
In other words, according to the ABA, you can investigate potential jurors’ and sitting jurors’ public social media content, but you cannot “friend request” them, send tweets or emails to them, subscribe to their twitter feed, etc. You should be mindful of those social media networks which generate a notification to the juror when you have viewed their information, as such notification may be construed to be an improper communication. Be especially careful when using LinkedIn to research a juror or potential juror because LinkedIn will send an e-mail notification to the juror that you have viewed their page if you are logged in to your LinkedIn account. Other social media sites such as Facebook and Twitter do not send notifications to the owner of the profile when someone views their public information unless the viewer interacts with the profile, such as by posting a comment or liking a photo. So, we suggest staying away from these practices. Nevertheless, as long as there is no questionable interaction, the publicly available information on a juror’s or potential juror’s social media site can properly give valuable insight into a juror’s views and biases.
What happens if while researching a juror you discover juror misconduct?
By passively viewing a juror’s social media, you may become aware of a juror tweeting or posting something about the case in violation of a court’s explicit instructions. Discovering a juror’s misconduct may require you to take remedial measures, such as reporting juror misconduct to the court. See R. Regulating Fla. Bar 4-3.3(b) (“A lawyer . . . who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”)
Courts are becoming increasingly aware of the challenges social media and electronic devices present in the courtroom. The pervasive use of social media networks has prompted courts to provide jurors with very strict instructions about the prohibition against using social media to communicate about their jury service or the pending case. In 2010, the Florida Supreme Court revised the jury instructions to address the issue of social media. In re Standard Jury Instruction in Criminal Cases & Standard Jury Instruction in Civil Cases, 52 So. 3d 595 (Fla. 2010).
Juror misconduct through the use of social media is a serious problem that is impacting the administration of justice. In 2010, a Reuters Legal survey found at least 90 verdicts subject to challenge from 1999 to 2010 because of internet-related juror misconduct. Today, that number is likely even higher. Most recently, two Palm Beach County jurors faced possible contempt charges for posting comments, such as “everyone is so money hungry that they’ll do anything for it” and “I don’t want to drive that far away to sit in a chair for 8 hours about some made up story,” to their Twitter and Facebook pages during trial.
According to ABA Formal Opinion 466 not all internet posts are created equal. The Opinion highlights that a lawyer’s affirmative duty to act is triggered only when the juror’s known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions. For example, a post about the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt. The materiality of juror internet communications to the integrity of the trial will likely be a consideration in determining whether the juror has acted criminally or fraudulently. Nonetheless, it is important for you to bring juror misconduct to the court’s attention to make sure your client gets a fair and impartial trial.
What does this mean to you?
In today’s internet saturated world, there is a blurred line between properly investigating jurors and improperly communicating with them. While researching a juror’s social media can have its advantages to your case, be mindful of the potential ethical issues at hand. You should treat social media networks and the jurors you are researching as though you are face to face. If information is publicly available it is fair game, but if the information needs to be requested or the juror can see you have looked at their profile, then it may be best not to look. If you become aware of a juror violating the court’s instructions, the safest approach is to notify the court and counsel to address the question of whether it was material.
*Mr. Ackerman is a shareholder with Ackerman, Link & Sartory, P.A.
**Ms. Rosenthal is an associate with Ackerman, Link & Sartory, P.A.