Since our ethics classes in law school, we have been taught to never communicate ex parte with potential or current jurors as proscribed by Model Rule 3.5(b) ("A lawyer shall not … (b) communicate ex parte with such a person [juror] during the proceeding unless authorized to do so by law or court order."). But what does "communicate ex parte" mean in the context of Facebook, LinkedIn, MySpace, Twitter, blogs, and other social networking websites where, seemingly innocuous communications can occur between strangers as easily as clicking a mouse or swiping a screen? Are attorneys actually violating ethical rules by "checking out" a potential or current juror’s virtual profile in the spirit of conducting due diligence? Last week, the ABA issued an opinion providing tangible guidance on these issues.
The ABA's Formal Opinion 466 dated April 24, 2014 provides that the following acts constitute ex parte communication that would violate Model Rule 3.5(b):
1. Making a "friend request" on Facebook, "connection" request on LinkedIn, or other similar requests to access one's private profile;
2. "Following" a Twitter account;
3. Sending a private message;
4. Initiating a chat; or
5. Subscribing to a blog's RSS.
According to the opinion, these are examples of "active lawyer review": The lawyer is directly communicating with the juror and the juror knows about it. The ABA has compared such acts to a lawyer driving to a juror's house, knocking on the door, and going inside to look around. It constitutes unethical and impermissible ex parte communication. (However, ethics opinions from the New Hampshire and Philadelphia Bar Associations have concluded otherwise, positing that a lawyer can request access to a juror's social networking site so long as the lawyer correctly identifies oneself first. See N.H. Bar Ass'n, Op. 2012-13/05; Phila. Bar Ass'n, Advisory Op. 2009-02.)
On the other hand, the following acts do not violate the Rule:
1. Viewing a juror's social networking site that is made available to the public.
According to the Opinion, this constitutes “passive lawyer review”: the juror does not know that the lawyer has reviewed his or her social networking site. ABA has compared this act to a lawyer driving down the street where the juror lives, simply to check out the area.
2. Viewing a juror's social networking site in such a way that the juror will receive an automatic, network-generated notification that somebody has viewed his or her site. (This is a common function on LinkedIn.)
According to the opinion, item 2 is technically an ex parte communication because the juror will know that somebody has viewed his or her site. However, because the social network sends the "communication" (or notification), not the lawyer, this act does not violate the Rule. The ABA has compared this to a lawyer driving down the street where the juror lives and a neighbor tells the juror, "I just saw that lawyer driving around here." (Note to New York practitioners: Two ethics committees have concluded that this act violates the Rule. See The Association of the Bar of the City of New York Committee on Professional Ethics, Formal Opinion 2012–2; The New York County Lawyers' Association Committee on professional Ethics, Formal Opinion 743.).
The takeaway point is that a lawyer must not seek to communicate ex parte with a potential or a current juror, because doing so would inevitably influence the juror's objectivity during the course of a proceeding. An impartial jury is always the standard, and it requires team work of everyone involved in a proceeding—the judge, the lawyers, and the jurors alike—in order to preserve this lofty standard. While lawyers have a duty to disengage from ex parte communication as set forth above, the Opinion also emphasizes jurors’ duty to refrain from discussing a proceeding on their social networking sites. The opinion also emphasizes judges’ duty to enforce the prohibition of ex parte communications on social media outlets. The opinion recommends that judges clearly and actively set forth social media guidelines in the form of court orders and daily jury instructions.
As a side note to those practitioners who are not too tech savvy: Do not think that this opinion does not apply to you, for all lawyers have duty to keep abreast of technology. See Comment [8] to Model Rule 1.1 (explaining that a lawyer "should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology").
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Author: Ian Y. Park
