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Is Jury Research on Social Media an Ethics Risk or a Competency Requirement?

By | Jan.23.18 | Ask the Experts, Daily Dispatch, Ethics, Law Practice, Social Media

QUESTION: During a recent jury trial, counsel was provided with completed jury questionnaires including names, ages, home addresses and places of employment. In addition to using traditional research techniques found in public records, to what extent may we use social media platforms to research the venire?

ANSWER: While a jury voir dire process may differ by jurisdiction and even courtroom, it nonetheless often entails limited time or opportunity to examine the venire. The reliance on jury consulting firms is a testament to this at the onset of many important trials.

Nowadays, simply inputting an individual’s name into an online search engine can yield a wealth of information. You can quickly learn if they own a home, are registered to vote, have recent civil or criminal cases against them, or even determine their job history and likely salary. Still, such data leave the attorneys to further interpret how a person may react or behave during the jury trial and deliberation. Social media, however, often provides a much deeper dive into who’s who in the venire.

Isn’t It Public Information Anyway?

If you’re using a general internet search engine (Google, Bing, Yahoo) to directly retrieve information, there should be no ethics concerns. The search results should be coming from publicly available information, thus not invading the jurors’ privacy or expectation of privacy. The same may be true with some advanced public records searches (paid or unpaid) because they often only serve as an aggregate of records already made public, such as criminal records, property records or voter registration.

ABA Formal Opinion 466 explains:

Passive review of a juror’s [electronic social media], that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b). In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions. The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b).

However, Not All “Public” Information Is Created (or Accessed) Equally

While the ABA may liken a “passive” review of potential jurors’ social media to “driving by,” it is not always so simple. The distinction comes when the researcher must log in, or take some affirmative identifying step before accessing the information.

Consider the popular social networking service LinkedIn. A user’s general information may be accessible on LinkedIn from both a search engine and directly on the LinkedIn website. However, a person must log in before being able to see the user’s full profile. Doing so allows the users being viewed to know who viewed their profile and when. Likewise, Twitter sends a notification to the account-holder when a new person starts to “follow” the account, even when the account is listed for public viewing. This “semi-public” method is still acceptable under the ABA’s Opinion 466, but others differ.

The New York City Bar’s Formal Opinion 2012-2 says that a communication, any communication, with the potential jury member is not acceptable, even if it is unknowingly or inadvertently delivered. It may not rise to the level of deception by the researching attorney, but it may run afoul of the Rules of Professional Conduct. Thus, it is up to the attorneys to remain competent with the technology and its processes.

Indeed, some services may automatically notify a user when her profile has been viewed, while others provide notification only if another user initiates an interaction. Because of the differences from service to service and the high rate of change, the committee believes it is an attorney’s duty to research and understand the properties of the service or website she wishes to use for jury research in order to avoid inadvertent communications.

New York County Lawyers Association Formal Opinion 743 reiterates the dangers of such ex parte communications: “If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites, the contact may well consist of an impermissible communication, as it might tend to influence the juror’s conduct with respect to the trial.”

While opinions differ slightly on the degree of ex parte communication with a potential or sitting jury member, the opinions are consistent that a non-attorney may not be utilized merely to evade the rules applicable to the bar. Such deception, misrepresentation or other use of a third party’s act to violate the rules is impermissible across jurisdictions.

Avoiding Social Media May Be No Better

In 2012, the ABA approved a Model Rules of Professional Conduct update requiring that lawyers maintain their competency not only in the law and its practice but also in technology. So far, some 28 states have adopted this ethical duty of technology competency.

Hence, the ability to conduct research on the venire using modern technology channels may be reasonably required, as Comment 8 to Rule 1.1 denotes:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

The New York City opinion emphasized this level of competency when examining jury pool research:

[S]tandards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case. However, social media services and websites can blur the line between independent, private research and interactive, interpersonal “communication.”

As relevant technology grows, so does the need for lawyers to thoroughly understand the benefits, risks and functionality of various social media platforms when researching the venire. Communication must remain restricted as must access to the privacy maintained by those answering the call to jury service.

Mark C. Palmer is Professionalism Counsel, Illinois Supreme Court Commission on Professionalism, where he promotes civility and delivers statewide professionalism programming, including its mentoring program, across Illinois to lawyers and law students with a dedication to justice and the rule of law. Mark blogs at 2Civility.org, the Commission on Professionalism’s website, and you can follow him at @2CivilityMP.

About the Illinois Supreme Court Commission on Professionalism

The Commission on Professionalism was established by the Illinois Supreme Court in September 2005 to foster increased civility, professionalism and inclusiveness among lawyers and judges in the state of Illinois. By advancing the highest standards of conduct among lawyers, we work to better serve clients and society alike. These duties we uphold are defined under Supreme Court Rule 799(c). For more information, please visit 2Civility.org, the Illinois Supreme Court Commission on Professionalism’s website.

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