Lawyers must tread carefully when researching jurors, N.Y.C. panel says

By Pat Murphy Dolan Media Newswires BOSTON, MA--A lawyer may violate professional rules of conduct by inadvertently "communicating" with a juror while conducting social media research, a New York City Bar Association committee has concluded in a new ethics opinion. New York's Rules of Professional Conduct generally prohibit ex parte communication with prospective jurors and members of a sitting jury. The advisory opinion addressed the ethical restrictions that the rule places on an attorney's use of social media websites to research potential or sitting jurors. The committee concluded that attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror. However, the panel broadly interpreted "communication" to encompass not only sending a specific message, but also any notification to the juror that they have been the subject of an attorney's research efforts. As a consequence, the committee explained that lawyers have the burden of knowing whether the technology associated with a particular social website will in some manner alert the juror of an attorney contact. "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 order to apply this rule to social media websites, attorneys must be mindful of the fact that a communication is the process of bringing an idea, information or knowledge to another's perception--including the fact that they have been researched. In the context of researching jurors using social media services, an attorney must understand and analyze the relevant technology, privacy settings and policies of each social media service used for jury research," the committee said. The committee also explained that attorneys must "avoid engaging in deception or misrepresentation in conducting such research, and may not use third parties to do that which the lawyer cannot." New York City Bar Association, Committee on Professional Ethics. Formal Opinion 2012-2 (undated). Lawyers USA No. 993-3935. Entire contents copyrighted © 2012 by The Dolan Company. Published: Thu, Jul 19, 2012

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