Nicole Black
BridgeTower Media Newswires
It’s no surprise social media evidence is a pivotal tool in litigation. Juror use of social media has resulted in mistrials across the country for more than a decade. Trial attorneys are increasingly mining social media for evidence and researching jurors online.
The rising practice of using social media information during litigation caught the attention of ethics committees some years ago, and the first opinion on this issue was handed down in 2009. I’ve regularly covered these opinions, and recently realized I’d overlooked one issued by the Maine Bar’s Professional Ethics Commission last November: The Commission addressed both the ethics of mining social media for evidence and researching jurors online; and whether lawyers may connect with judges or quasi-judicial officers on social media sites.
The Commission acknowledged that defining social media is a difficult task, since “(t)he functionality, technology and content available on the platforms that make up “social media” likely will continue to evolve dramatically in the future.” It attempted to offer a rather broad definition, defining social media networks as sites that “are used primarily for connecting socially with multiple ‘friends’ and for sharing a wide range of personal, professional and editorial information using text, links, photographs and video,” while specifically excluding sites that “lack the type of sharing of non-public information with ‘friends’ selected by the profile holder, which characterizes social media platforms.”
Next, the Commission turned to using social media to obtain evidence for a pending case and sided with the majority of other jurisdictions in concluding all publicly viewable social media information is fair game and may be viewed without issue. But for unrepresented parties, data found behind a privacy wall may only be accessed if attorneys or their agents, when making the connection request, “affirmatively disclose the purpose of the contact.” Represented parties were a different story — all private information found behind the privacy wall was found to be off limits since any attempt to connect in order to access that information constitute impermissible communications with a represented party.
The Commission also sided with the majority of jurisdictions on the issue of whether passive notifications (like those sent by LinkedIn when someone views a user’s profile) sent by social networks to jurors constituted an impermissible communication.
Like the American Bar Association Committee and the DC Bar Committee (and in contrast to the position taken by the New York State Bar Committee), the Commission concluded that only publicly viewable information could be accessed and that passive notifications to jurors sent by social media sites did not constitute impermissible ex parte communications since “any other approach would be unworkable as a practical matter and would subject attorneys to potential ethics violations based upon the happenstance of user settings or new technologies that generate automated messages outside of the attorney’s reasonable knowledge or control.”
The Commission cautioned “where an attorney knows or reasonably should know that accessing any social media of a juror will result in such juror becoming aware of the attorney’s access, the attorney should refrain from accessing that social media, (and) (i)f the attorney learns that any juror…has become aware of (it), the attorney must notify the Court…(which) may find it advisable to provide a cautionary instruction…”
Finally the Commission weighed in on lawyers connecting with judges online: “Attorneys are permitted to connect with judges and other judicial officers through social media, but they are precluded from having ex parte communications with — or from attempting to impermissibly influence — such judges or judicial officers through social media.” Once again, this was in line with the position taking by most other jurisdictions on this issue.
As more jurisdictions address these issues, commonalities arise in the analysis and conclusions reached. In this case, the Commission acknowledged the rapid pace of technological advancement and incorporated that concept into the context of its determinations. Hopefully committees in jurisdictions that have not yet addressed these issues will follow suit, since guidelines on ethical use of technology that have flexibility built in are more likely to withstand the test of time.
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Nicole Black is a director at MyCase.com, Reach her at niki@mycase.com.
