…Formal Opinion No. 743, issued by the New York County Lawyers’ Association Committee on Professional Ethics, which addressed the issue of how lawyers can ethically use social media for juror research during trials. The committee concluded that pursuant to RPA 3.5 it is ethically permissible for attorneys to conduct research and follow jurors’ social media interactions only if the jurors are unaware of the monitoring.
More recently, the New York City Bar Association‘s Committee on Professional Ethics addressed a similar issue in Formal Opinion 2012. The specific issue addressed was: “What ethical restrictions, if any, apply to an attorney’s use of social media websites to research potential or sitting jurors?”
The committee reached the same conclusion as the New York County Ethics Committee and concluded that lawyers can use social media to research jurors, so long as the jurors remain unaware that the research is occurring.
The committee explained that it was important to ensure that a juror did not learn of of the attorney’s actions, whether in the form of a notification from the social media site or otherwise. If the attorney knew a juror would be aware of the monitoring, then it would be unethical to conduct the research on that particular site. Furthermore, even if the attorney was unaware that a notification would be sent, if the juror subsequently learned of the monitoring, then it could still qualify as a prohibited communication in violation of RPE 3.5.
- Lawyers’ use of social media during trials (nylawblog.typepad.com)
- Ethics Opinion on Juror Research and Social Media (juries.typepad.com)
- New York Ethics Committee on Lawyers’ Use of Social Media During Trials(nylawblog.typepad.com)
- How lawyers might manipulate jurors by planting misleading info about a pending case on blogs and websites (lawprofessors.typepad.com)