By Correy Stephenson
The Daily Record Newswire
BOSTON, MA — With more than 500 million people on Facebook, it should come as no surprise that jurors are players in the world of social media.
And it seems that each week, a story surfaces about a juror tweeting her plan to convict a defendant, or posting on Facebook that he plans to find for the plaintiff – before deliberations even begin.
So the question is: Has the social media presence of jurors become so overwhelming that lawyers have a duty to monitor it?
The answer, according to ethicists and lawyers: it depends.
“Due diligence is necessary during the voir dire stage of trial, but lawyers should be cautious [about fishing or mining] through the Internet during the trial,” because different phases of trial raise different ethical considerations, said Barry Temkin, an ethicist of counsel at Mound Cotton Wollan & Greengrass in New York City.
“We are a long way from having a hard and fast standard that lawyers must continually monitor jurors online or fear that they are committing malpractice, but it is certainly something to have concern about,” said Michael Downey, a partner at Hinshaw & Culbertson in St. Louis, Mo., who blogs about ethics at The Ethical Quandary.
Younger generations of jurors are accustomed to getting their information from the Internet and interacting online on a daily basis, Temkin said.
As a result, despite the admonitions of trial judges, jurors are using their smartphones to Google a party or witness in a case, or look at a street map to analyze an accident site on their own, said Nicole Black, a criminal defense attorney in Rochester, N.Y. and co-author of the book, “Social Media for Lawyers: The Next Frontier.”
Jurors are also sharing their thoughts about cases online.
“Jurors have always discussed cases with their spouses or read the newspapers, but the difference with the Internet is that it expands their reach and their ability to connect with people,” said Black.
Under the duty of zealous representation of a client, lawyers may have an obligation to look for what jurors are saying on social media sites, Black said.
Temkin advises looking at the ethical issues involved in monitoring jurors’ social media presence based on three stages of trial.
First is the voir dire, or investigation phase.
Lawyers are encouraged to research potential jurors, and Twitter, Facebook, MySpace and blogs are excellent sources of information, said Downey.
He noted that a recent Missouri case implies that lawyers have a duty to perform a requisite amount of research on jurors prior to trial.
The Missouri Supreme Court chided an attorney for failing to perform Internet research on a juror who incorrectly answered questions during voir dire. (Johnson v. McCullough, 306 S.W.3d 551 (2010).)
In that case, a potential juror in a medical malpractice suit denied that he had been a party to any civil litigation. After a defense verdict, the plaintiff’s counsel checked the state’s automated case record service and discovered that the juror had been a defendant in multiple debt collection cases, as well as in a personal injury suit.
The plaintiff’s lawyer moved for a new trial, arguing that the juror’s intentional nondisclosure was prejudicial.
The state’s highest court affirmed an order for a new trial, saying that “a party must use reasonable efforts to examine the litigation history on [the case record service] of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial.”
The decision places a burden on lawyers to conduct online investigations of jurors, Downey said.
The second phase — the trial itself — poses some serious ethical hurdles to monitoring jurors.
“At the actual trial stage, there is a no-contact rule between lawyers and jurors,” Temkin said.
The idea is to “protect jurors throughout the deliberative process and there is a real concern about lawyers communicating with jurors in an ex parte setting,” Downey explained.
Therefore, if a lawyer undertakes an investigation during trial, the key is passive monitoring, he said.
If the juror has a publicly available blog or Facebook page, then it might not be inappropriate for a lawyer to check it out.
But sending a friend request, attempting to connect on LinkedIn or signing up for an RSS feed from the juror’s blog would not be recommended, Downey said.
Temkin noted that some services, like Twitter, send an automatic message when a new user starts following a feed.
If a lawyer started following a juror on Twitter and “a message was conveyed to the juror, that could be considered contact in violation of the ethics rules,” he cautioned.
In some states, such as New York, lawyers have an ethical obligation to notify the court if they become aware of improper conduct by a juror, Temkin said. So a lawyer who
found comments that indicated a juror was performing outside research or had already made up her mind would need to inform the court.
Temkin said the lawyer’s notice could raise ethical concerns about why a lawyer was investigating jurors during trial.
“Why is a lawyer fishing or mining the Internet to check on jurors, if not to advise or benefit his client, or unless he believed some impropriety was going on?” Temkin asked. “I don’t think lawyers have any duty to routinely continue their investigation of the jury during the trial.”
Shannon McLin Carlyle, a partner at the Carlyle Appellate Firm in The Villages, Fla., expressed concern that some attorneys might fail to disclose information they learn about a juror — keeping it in “their back pocket” in case of an unfavorable verdict — and then use the information to seek a new trial.
But the third stage — post-trial — again opens the door to lawyers interested in monitoring jurors, Temkin said.
After the trial, most state ethics rules allow lawyers to get in touch with jurors, though Temkin noted certain restrictions, such as lawyers not being allowed to harass jurors or use misrepresentation or try to influence a juror in future jury service.
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