Lawyers should use caution when researching jurors online

A new NYC Bar opinion condones social media research, but warns against inadvertent communication

In an age when one Tweet can cause a mistrial, it’s no surprise that lawyers want to keep tabs on jurors’ online communications. But a new ethics report from the New York City Bar Association warns attorneys to proceed with caution when viewing jurors’ social media profiles.

The formal opinion, issued Monday, says lawyers can research prospective or sitting jurors on social networking sites, “as long as no communication occurs between the lawyer and the juror as a result of the research.” It sounds simple, but the decree comes with plenty of caveats, as even inadvertent contact between lawyers and jurors could constitute forbidden communication.

According to the opinion, “’communication,’ … should be understood broadly, and includes not only sending a specific message, but also any notification to the person being researched that they have been the subject of an attorney’s research efforts.” Essentially, lawyers can research jurors, as long as those jurors never find out. This is easier said then done, however, when using social media sites such as LinkedIn, which allows users to see a list of people who have viewed their profiles. To guard against such inadvertent contact, the opinion advises attorneys to research websites’ privacy settings before attempting any social media research.

Social media use has become an increasing courtroom concern for judges, as well. Earlier this year, a survey in the Duke Law & Technology Review reported that 60 percent of judges surveyed had specifically instructed jurors not to use social media during trials.

For more analysis of the NYC Bar’s opinion, visit Reuters.

Alanna Byrne

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