Ethical Issues That Arise From Social Media Use In Courtrooms

With the rampant expansion of social media and online technologies over the past decade, it is no surprise that Facebook, MySpace, Twitter, Instagram, YouTube and blogs have made their way into the courtroom, pervaded the jury box, and even pierced the veil of judges' chambers. This expansion of social media technologies has raised many questions about the use of the information that can be obtained and the ways attorneys go about obtaining that information. This article addresses some of the ethical issues that can arise when an attorney turns to social media platforms or online technology during a trial.

Social media research has been described as the wild West by some legal commentators, and for this reason bar associations throughout the country have started establishing parameters for ethical online social media research at trial. About a year ago, during the summer of 2012, the Professional Ethics Committee of the New York City Bar Association (NYCBA) issued Formal Opinion No. 2012-2, titled "Jury Research and Social Media." To date, the opinion appears to be the most comprehensive analysis of the subject.

Formal Opinion 2012-2 addresses the ethical restrictions that apply to an attorney's use of social media websites to research potential or sitting jurors. The starting point for this analysis was the New York Rules of Professional Conduct (RPCs) and in particular, RPC 3.5, which addresses the maintenance and partiality of tribunals and jurors. Among other things, RPC 3.5 states that "a lawyer shall not ... (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the jury unless authorized to do so by law or court order." This rule is similar to New Jersey RPC 3.5, titled "Impartiality and Decorum of the Tribunal." Under New Jersey RPC 3.5(c) a lawyer shall not communicate ex parte with a juror or prospective juror except as permitted by law.

Social Media Research of Jurors During the Jury Selection Process

In light of the language in New Jersey's and New York's versions of RPC 3.5, one of the ethical issues that arises most often involves the use of social media research during the jury selection process. Formal Opinion 2012-2 analyzed this issue and found that "[i]f a juror were to (i) receive a 'friend' request (or similar invitation to share information on a social network site) as a result of an attorney's research, or (ii) otherwise to learn of the attorney's viewing or attempted viewing of the juror's pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification."1

Formal Opinion 2012-2 found that the same attempts to research a juror might constitute a prohibited communication even if inadvertent or unintended, because NY RPC 3.5 does not contain a mens rea requirement. The same appears to be true with NJ RPC 3.5, which does not contain a mens rea requirement, and by its express terms prohibits all ex parte communications with jurors, even if inadvertent.

Thus, if an attorney does not know the functionality of a social media platform, he or she should proceed with caution in conducting research, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation of the rules of professional conduct.2 Fortunately, most search engines for social media platforms do not permit registered members to learn who accessed their information. LinkedIn, however, allows its registered members to learn of individuals who viewed their profiles, and attorneys should understand the functionality of the LinkedIn search engine and other similar search engines to minimize the risk of unintended communications with prospective jurors.

Although some attorneys may question if Internet research on jurors is even permissible during voir dire, the New Jersey Appellate Division found the practice acceptable. In Carino v. Muenzen,3 a medical malpractice action, the plaintiff's counsel was using Google to conduct research on potential jurors in the venire. When this was brought to the attention of the trial judge, the court prohibited the research because: 1) the plaintiff's counsel did not provide advance notice to the court and opposing counsel, and 2) the judge wanted to create an "even playing field," since the defendant's counsel was not conducting the same research.4

On appeal, the plaintiff's counsel argued that the trial court abused its discretion during jury selection by precluding him from accessing the Internet to obtain information on prospective jurors. The Appellate Division noted that no authority exists for the trial court's determination that counsel is required to notify an adversary and the court in advance of accessing the Internet during jury selection or any other part of a trial. The Appellate Division also criticized the trial court's effort to create an "even playing field," noting that Internet access was open to both counsel. It thus concluded that the trial court acted unreasonably in preventing use of the Internet by the plaintiff's counsel, but nevertheless affirmed the judgment because the plaintiff's counsel had not demonstrated any prejudice resulting from the failure to use Internet research on potential jurors.5

Assuming access to the Internet is available...