Most lawyers want to know as much as possible about the jurors on their case. Some may consider using social media to research jurors but hesitate because they don’t know if they can ethically do so.
Consider the following scenario. Scroll all the way down for the answer.
Attorney Grace represents Plaintiff Joe Cougar in a breach of contract case against manufacturer Acme Company who is represented by attorney Alan. At issue is whether certain products delivered by Acme Company to Joe Cougar were defective and whether Acme breached certain warranties.
When settlement discussions proved unsuccessful, the parties proceeded to trial. After jury selection was completed, Alan conducts an internet search to learn more about the backgrounds of the jurors. He is excited to find that Juror X has a LinkedIn profile. He sends Juror X a LinkedIn request to connect and Juror X accepts the invitation.
Grace does not undertake any internet research on the members of the jury. She is not that comfortable with social media and she is afraid of violating her ethical obligations in using it.
Are there any potential ethical violations in this scenario?
- No, there were no ethical violations in this scenario.
- Yes, Alan should not have sent Juror X a LinkedIn request.
- Yes, both Alan and Grace have potentially violated the ethics rules.
Take a minute to come up with your answer.
The correct answer is C.
In ABA Formal Opinion 466, titled “Lawyer Reviewing Jurors’ Internet Presence,” the ABA addresses the question of whether lawyers may search the Internet for information concerning jurors or potential jurors and what ethical obligations lawyers have regarding information discovered during the review. The opinion states that it is permissible for lawyers to review potential or current jurors’ social media pages and internet postings that are publicly available but forbids lawyers from personally, or through others, requesting access to information that a juror has not made public.
By sending Juror X a LinkedIn request, Alan has potentially violated Model Rule 3.5(b) which prohibits ex parte communications with jurors. While the opinion found it was improper to send the LinkedIn request, it would not have been improper for Alan to view the juror’s profile because the profile is available to the public.
It’s very important for you to check the opinions in your jurisdiction since there is some debate on this point. For example, in the New York County Lawyers Association Formal Opinion 743, lawyers are cautioned against even a passive review of a juror’s social media profile. Since some of the social media platforms, such as LinkedIn, notify users when someone has viewed their profile, the concern is that a juror’s conduct might be influenced if he/she learns that the attorney was reviewing their profile.
With respect to Grace, her failure to undertake any research about the jurors could be construed as a potential violation of Model Rule 1.1 Competence which reads: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”. Comment 8 to Rule 1.1 requires a lawyer to keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology. In spite of her discomfort with social media, Grace must take the time to understand it and to use it effectively to best represent her clients or at the very least, contact ethics counsel so she can ethically engage social media.
Always check the opinions in your jurisdiction and/or consult with an ethics attorney. If you have tried text message advertising, let us know if it helped you get clients.