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Guest post by Jennifer K. Halford, Esq.
Attorneys may use social media websites to research jurors as long as they do not have any communication with the juror, the New York City Bar Association recently announced in its ethics opinion 2012-2.
Social media can be a great tool for attorneys. Facebook, Twitter, and other social media sites can reveal information about potential jurors. It can also help you monitor for signs of misconduct during trials.
The key is that no ex parte "communication" can occur as a result of your research. There are some obvious no-no's, like requesting to "friend" a juror on Facebook or chatting or messaging with jurors. But a "communication" has a much broader definition through social media, as the opinion points out.
You can conduct Internet research but you have to make sure that jurors don't know you are doing it. So how does the NY Bar Opinion suggest you check on jurors via social media without violating your ethical duty?
1. Watch out for alerts for viewers: Some social media sites like LinkedIn show users who has viewed their profile. This constitutes a communication when the juror learns an attorney is viewing his pages regardless if the attorney knew his actions would trigger a communication, according to the opinion.
2. Watch out for alerts for followers: Beware if you plan on following a juror in the social media world. Sites like Twitter allow the user to select to receive an email alert whenever he has a new follower. That could be considered an improper communication regardless of your intentions.
3. Know how the site works before you use it: The opinion says that it is the attorney's ethical obligation to be aware of how each site works.
"It is the duty of the attorney to understand the functionality and privacy settings of any service she wishes to utilize for research, and to be aware of any changes in the platforms' settings or policies to ensure that no communication is received by a juror or venire member."
Thus, you must know if the research method you are using will result in an improper communication. And you will be held responsible whether or not you realized it would.
Jennifer K. Halford is an attorney whose practice focuses on business law and estate planning. She is also a professor at California State University, Chico, where she teaches Entrepreneurial Law .