For judges who want to be sure that jurors don't disrupt trials with errant Facebook or Twitter posts, communication is key, as we noted last month. For lawyers who want to use social media to research those same jurors, on the other hand, communication is strictly verboten, at least according to the New York City Bar Association.

This week the group released a formal opinion advising lawyers on how they may use Twitter, Facebook and other social media sites either to dig up dirt on their potential panel or to follow along during trials to monitor any misguided juror postings. (Our colleague Jessica Dye covered the opinion for Reuters. The NYC Bar is a voluntary organization, so the opinion serves as guidance rather than a strict requirement.)

The main takeaway from the opinion is that lawyers should feel free to conduct Internet research, but they should take care that jurors don't detect it. That may sound sneaky, but the concept is nothing new: As the opinion points out, ethics rules have long prohibited attorneys from engaging in ex parte communications with jurors, whether prospective or paneled. But the opinion details how, in the new reality of social media, "communication" has a much broader definition than it used to have.

For instance, a lawyer may not send a friend request to a juror, even if that juror's Facebook profile permits full access only to friends. Further, the NYC Bar opinion said, when a juror learns an attorney is viewing his pages or posts, that also constitutes communication if the lawyer knew his actions would trigger a communication. Going even further, it could constitute a communication, the opinion said, even if the communication is inadvertent or unintended.

If you're a social media neophyte, your head might be spinning with that one. But there are a few ready examples. During voir dire, a partner (or, more likely, his associate or jury consultant) may want to "follow" a prospective juror's Twitter account rather than repeatedly checking the juror's Twitter page. But, depending on the juror's Twitter settings, he might receive an email alert for every new follower. The lawyer's move to follow the juror could thus be considered an improper communication, regardless of the attorney's intentions.

Richard Seabolt of Duane Morris, who advised on California's model jury instructions on social media, told us about another example of when a broad definition of "communication" might come into play. Certain LinkedIn users, he noted, have the ability to see who viewed their profile. If a juror realized that a lawyer looked her up on LinkedIn, that could also constitute improper communication under the NYC Bar's definition.

The stickiness of the details aside, the same guidance goes for monitoring jurors' use of social media during trial. Doing so, however, now carries an official caveat from the NYC Bar. As On the Case has previously reported, monitoring jurors' social media use during trial may result in the unwelcome discovery that a juror is inappropriately talking about the case. The new opinion leaves no wiggle room for wondering whether an attorney must come forward, saying that "if an attorney learns of juror misconduct through research, she must promptly notify the court."

So while attorneys will have to decide whether they want to risk a mistrial by following juror posts, it's worth considering the tale of some California lawyers who might have saved themselves a lot of trouble if they'd done so. As On the Case reported in February, a state Superior Court judge ordered a juror to turn over his Facebook postings so the court could determine whether the posts necessitated overturning convictions in a multidefendant assault case. The juror, represented by Kenneth Rosenfeld of The Rosenfeld Law Firm, appealed the order, arguing that it violated his right to privacy and right not to incriminate himself. The appeals court was not persuaded, ruling last week that the juror must turn over the Facebook posts. The appellate court found that the trial judge couldn't determine whether the posts constituted prejudicial misconduct without seeing them, and the juror's privacy rights "do not trump real parties in interest's right to a fair trial free from juror misconduct."

Rosenfeld was not immediately available for comment, but he told us in February that should the appeals court not go his way, he would appeal to the state Supreme Court.

(Reporting by Erin Geiger Smith)

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