Bar News - July 16, 2014
ABA Opinion on Online Juror Research Stricter Than NH Opinion
By: Christopher D. Hawkins
A new opinion by the American Bar Association Standing Committee on Ethics and Professional Responsibility is more restrictive regarding online juror contact than an opinion issued by the NH Bar Association Ethics Committee last year.
On June 20, 2013, the NH Bar Association Ethics Committee published Advisory Opinion #2012-13/05 outlining the ethical implications of online research of non-party witnesses. The committee determined attorneys may view a witness’s unrestricted Facebook page, Twitter feed, or similar public online profile, but may not, either directly or through an agent, send a friend request or request to follow a restricted Twitter feed unless the request identifies the lawyer by name, her client, and the matter in litigation.
On April 24 of this year, the ABA committee issued Formal Opinion 466, applying these principles to research of and contact with jurors.
Under Rule 3.5 of the Model Rules of Professional Conduct, lawyers are prohibited from attempting to influence a judge, juror, prospective juror or other official by means prohibited by law. The rule also prohibits communicating with jurors or prospective jurors during and after the proceeding in violation of law or court order, and when the juror has indicated a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.
The ABA committee took the view that merely viewing the public profiles of potential jurors does not violate Model Rule 3.5 because no “communicative act” is involved. The committee opined, however, any access request sent by the attorney, or an agent of the attorney, to the juror would violate Rule 3.5(b). This is more restrictive than suggested by New Hampshire Advisory Opinion #2012-13/05, which permits communication if material information is sufficiently disclosed. It is possible the NHBA Ethics Committee and the courts will adopt the ABA interpretation of Rule 3.5 and prohibit all communications with jurors, notwithstanding the disclosure of material information, as their role becomes more critical to the integrity of the judicial process.
The ABA committee pointed out many social media networks, such as LinkedIn, generate automatic notifications to participants when their profile has been accessed. This means that a potential juror may become aware when an attorney views their profile, which may cause them to feel intimidated. The ABA Committee cautioned that Rule 4.4(a) prohibits lawyers from actions having no substantial purpose other than to embarrass, delay, or harass a third person. Accordingly, lawyers should take care their online research of potential jurors is purposeful within the scope of their representation.
The ABA committee encouraged judges and lawyers to discuss the court’s expectations regarding research of potential jurors on the Internet. In addition, a judge may advise potential jurors that their backgrounds will be of interest to the litigants and that lawyers may investigate their publicly-available information online.
Responding to Juror Misconduct
The ABA committee addressed the related question of how attorneys should respond upon discovering juror misconduct, whether through online research or otherwise.
Model Rule 3.3(b) provides that a lawyer who represents a client in an adjudicative proceeding, and who knows that a person intended to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
This rule appears to be fairly narrow as it is not immediately clear whether, for example, a juror’s disregard of instructions to avoid discussing any aspect of a trial would necessarily amount to “criminal” or “fraudulent” conduct.
The ABA’s Ethics 2000 Commission proposed amending Rule 3.3(b) to encompass a broader range of “improper” conduct. This proposal was never carried out, however, and the scope of Rule 3.3(b) remains limited to criminal or fraudulent conduct. Criminal conduct may include knowing disregard of the court’s instructions. U.S. v. Juror Number One, 866 F. Supp. 2d 442 (E.D. Pa. 2011) (juror dismissed from case and admonished by judge not to discuss case emailed two other jurors that night to share her opinion of the evidence).
Whether an attorney has an ethical duty to act upon juror misconduct amounting to less than criminal or fraudulent conduct depends in part on the impact of the conduct on the integrity of the proceedings.
Standard of Care
The ABA committee also opined whether the standard of care requires attorneys to use Internet searches to research potential jurors and witnesses. The ABA Committee relied in part on the NHBA’s Ethics Committee Advisory Opinion #2012-13/05, which states lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”
This is consistent with Johnson v. McCullough, in which the Supreme Court of Missouri held lawyers must use reasonable efforts to find a potential juror’s litigation history in Missouri’s automated case management system. In that case, a defense verdict in a medical malpractice case was overturned upon discovery that a juror had intentionally failed to disclose her prior litigation experience.
Civil and Criminal Implications
An obligation to conduct online research of potential jurors and witnesses has implications for both civil and criminal practitioners. Civil practitioners could face negligence claims for failure to discover material evidence of a juror’s bias, and criminal practitioners could face claims for ineffective assistance (and negligence) on the same basis.
This leads to questions regarding the scope of the obligation to search the Internet for evidence of juror bias, including whether research must be performed periodically in the course of a long trial, and how long after the verdict is rendered research must continue. For example, would the standard of care require Internet checks for 30 days after the trial concludes? These and other questions may be addressed in the near future.
Formal Opinion 466 helps clarify the ethical boundaries of Internet research regarding jurors and potential jurors. The opinion, and the ease with which information regarding potential jurors may be obtained, however, raises significant questions regarding an attorney’s obligations to report juror misconduct and implicates the standard of care for trial preparation, conduct, and post-trial proceedings.
Christopher Hawkins practices professional liability defense at Nelson Kinder & Mosseau in Manchester. He is a member of the ABA Standing Committee on Lawyer’s Professional Liability, and the Legal Counsel Forum of the American Council of Engineering Companies.