Monday, July 9, 2012

Can Lawyers Use Social Media to Research Jurors?

The New York City Bar Association says yes, within limits. From U.S. Law Week:

A lawyer may use social media websites to gather information about jurors but must not “friend” them, sign up to receive their postings, or do anything else the lawyer knows would make jurors aware that the lawyer is checking up on them, according to a recent opinion from the New York City bar's ethics committee (New York City Bar Association Committee on Professional Ethics, Formal Op. 2012-2).

Here’s the summary:

The advice in New York City Formal Op. 2012-2 about using social media to research jurors includes these guidelines:

Search engines. “[S]earch engine websites may be used freely for juror research because there are no interactive functions that could allow jurors to learn of the attorney's research or actions.”

Chats, friend requests. “An attorney may not … send a chat, message or ‘friend request' to a member of the jury or venire, or take any other action that will transmit information to the juror.”

Publicly available content. “[A]n attorney may read any publicly-available postings of the juror but must not sign up to receive new postings as they are generated.”

Unfamiliar services. It's risky for lawyers to use a social media service without assuring themselves that the website will not generate a message to the juror or allow the juror to determine that their information has been visited.

Pretexting. Lawyers must not misrepresent their identity or associations.

Use of investigators. Lawyers must not let investigators do research that would be forbidden for lawyers to do.


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