NEW YORK, June 4 (Reuters) - Lawyers can conduct research on social media websites, so long as they do not communicate with potential or sitting jurors, the New York City Bar Association said in an ethics opinion released Monday.

The opinion, No. 2012-02, focuses on what constitutes a forbidden ex parte communication on websites like Facebook and Twitter, which many lawyers are using to dig up information on potential jurors or monitor for signs of misconduct during trials.

"Communication, in this context, 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," the opinion states. "Even if the attorney does not intend for or know that a communication will occur, the resulting inadvertent communication may still violate the rule."

In 2011, the New York County Lawyers Association issued an advisory opinion restricting attorneys' social media research to publicly available information and warning against using the sites to contact individuals.

But the question of what constitutes a "communication" has become increasingly difficult for attorneys to navigate, given the myriad of ways in which users can find out who has attempted to view their social media pages, the city bar opinion states.

For instance, a request to add someone as a "friend" on Facebook would be forbidden under American Bar Association Formal Opinion 319, which prohibits ex parte communication with potential or sitting jurors, according to the opinion. Chats and messages sent to users over such sites would also be prohibited.

'DUTY OF THE ATTORNEY'

The opinion cautions against the "ethical risk" that may arise if research is done on a social media service that alerts users when another individual has viewed their information. Professional networking site LinkedIn and some dating websites, for instance, show users who has viewed their profile.

"The central question an attorney must answer before engaging in jury research using a particular site or service is whether her actions will cause the juror to learn of the research," the opinion says.

The same prohibition against communication via social media websites applies to anyone doing research on the lawyer's behalf, according to the opinion, as well as midtrial research to investigate potential instances of misconduct.

The bar group acknowledged that it intentionally left its definition of "communication" open-ended to account for the evolution in how social media sites function.

But ultimately it's the lawyer's ethical obligation to be aware of how each site works, according to the opinion.

"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," the opinion states.

Lawyers can make use of any information made publicly available on social media websites under New York Rules of Professional Conduct 3.5 and Rule 8.4(c), the opinion says. But if it seems the individual has misunderstood the site's privacy settings and didn't intend the information to become public, a lawyer should proceed with caution.

(Reporting by Jessica Dye)

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