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
"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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