Michael L. Fox, Esq.
Past Chair, NYSBA Young Lawyers Section
Partner, Jacobowitz & Gubits, LLP
In the past, I have written articles and presented CLEs focusing on electronic discovery, and in particular social media's impact on the world of discovery. However, discovery is not the only area in which social media is having an effect in the legal profession. With the explosion of use of social media, so too has there been an expansion of ethical issues a practitioner should be both aware of and concerned about.
Before we begin, some questions to consider:
* Can an attorney view the MySpace, Facebook, Instagram, or other social media, pages of another party (not the lawyer's client) for information gathering?
* May an attorney either directly, or through another person, contact an unrepresented person through social networking?
* Is an attorney permitted to research prospective jurors before, during, and/or after voir dire?
* What should attorneys tell their clients about social media preservation? About any ESI preservation?
* What do we do about jurors who choose to engage in social media usage during trials?
There are several New York Rules of Professional Conduct that will come into play during our discussion here, in particular Rules 3.5, 4.1, 4.2, 4.3, 5.3 and 8.4, among others. These Rules address communication, truthfulness, misconduct, attorneys' responsibility for the conduct of non-lawyers, and communications with represented and unrepresented persons.
Attorney Viewing Web Pages of Adverse Parties or Witnesses
Many state and national bar associations have issued opinions on these matters, and there is significant agreement in the opinions - although not universal agreement on specific questions.
For instance, New York State Bar Association Opinion 843 (2010) held that yes an attorney may view the page of another party, so long as the attorney does not "friend" or otherwise "communicate" with the person, or have a third party do so. Remember - the ethical rules prohibit an attorney from requesting that another do something that the attorney is ethically prohibited from doing herself or himself. An attorney, or someone at the attorney's direction, though, may certainly access public pages of the network utilized by another party. In that circumstance, the authorities seem in agreement that the attorney does not run afoul of ethics Rules 4.1, 4.2, 4.3, 5.3(b)(1), or 8.4. An attorney can view websites of opponents, so long as the social media or webpage is public or passive - much like viewing a magazine.
However, an attorney should be very cautious even with unrepresented adverse witnesses. In the same NYSBA Opinion 843, the Committee cited to Philadelphia Bar Association opinion 2009-02 (March 2009), which held that pursuant to a Pennsylvania Rule (similar to New York Rule 8.4(c)) the lawyer's intention to have a third party "friend" the witness to obtain access to non-public Facebook and MySpace pages, and thereby locate impeachment material, would violate the rule concerning attorney dishonesty/fraud/deceit/misrepresentation.
On the same matter, the New York City Bar's Opinion 2010-2 evaluated whether an attorney is permitted to either directly or through another contact an unrepresented person through social networking. The City Bar answered the question both "yes" and "no". An attorney cannot use trickery. There are non-deceptive means to utilize, and those are the methods to be employed - i.e. an attorney may use Facebook and utilize "truthful" friending, or utilize subpoenas to non-parties holding information. Keep in mind, though, that the Stored Communications Act's prohibitions were not addressed in the opinions, so one should take care to observe lawful means of accessing social media.
Utilizing Social Media to Research Prospective Jurors During Voir Dire
Changing course slightly, let us consider whether an attorney may use social media to research jurors during voir dire. A more recent New York City Bar Opinion, 2012-2, provides guidance concerning the limits on an attorney using social media to research potential and sitting jurors. The guidance is similar to that for adverse parties or witnesses, EXCEPT an attorney may not have contact in any way with the juror or potential juror, or cause another person to contact or send a message that would be received by a juror or potential juror - this, of course, includes a "friend" request. See also NYCLA Opinion 743 (2011) (no contact, no friending, no tweets; juror must not become aware or be made aware of the monitoring; lawyer may not engage in deceit or misrepresentations, or cause others to do so; if attorney becomes aware of misconduct and deliberations in violation of Court's instructions, attorney must advise Court under Rule 3.5 before attorney engages in further activity).
Most recently, the American Bar Association issued Formal Opinion 466 (April 24, 2014). Specific excerpts are below:
Unless limited by law or court order, a lawyer may review a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.
A lawyer may not, either personally or through another, send an access request to a juror's electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).
The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).
In the course of reviewing a juror's or potential juror's Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.
ABA Formal Op. 466 (2014).
Per ABA Formal Opinion 466, a lawyer may not personally or through another send an access request to a juror or potential juror. The ABA held that: "This would be akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past." That is barred.
Perhaps you believe it would be easier, and safer, to avoid utilizing social media at all when conducting jury voir dire? However, the matter is complicated by the fact that some commentators believe that doing no background checking on social media is not proper, and perhaps borderline malpractice. Fortunately, that opinion is not uniform, and will largely depend on the attorney's time and available resources.
In general, though, potential jurors should just be aware that attorneys and parties may be looking into the juror's background, social activities, political views, and even prior articles or blogs. While it should not dissuade potential jurors from exercising their right of free speech, it is something that potential jurors may find to be of interest, and may wish to be aware of during the course of their jury service. And, at the same time, it is something attorneys should consider undertaking, since social media research during voir dire may be another arrow in the litigator's trial quiver.
In the interest of thoroughness, you should be aware that some commentators have already criticized ABA Opinion 466. The NYSBA Commercial & Federal Litigation Section Social Media Committee's Co-Chairs, together with Retired Federal Magistrate Judge Ronald Hedges, wrote in the September 2014 NYSBA Journal (originally printed in the NY Law Journal) that they disagreed with ABA Opinion 466. In their view, which this author shares, Opinion 466 is not sufficient to guide an attorney in searching the social media doings of a juror.
The article's authors instead cite NYCLA's Formal Opinion 743, and ABA Model Rule 1.1, in addition to NYSBA ComFed's Social Media Ethics Guidelines 5.B.
Again, generally, as a best practice in New York, an attorney should not search a juror's social media in any fashion that provides to the juror a response, automated or otherwise, that the attorney was looking. Some social media networks provide a "footprint" or advise users regarding who has viewed their social media pages. In such a situation, if an attorney utilizes that type of social media network, the attorney should first make sure that their settings are such that they appear as "anonymous" to those users whose pages they view.
The ABA's Opinion, in contrast, provides somewhat differently. An attorney is supposed to keep abreast of changes in the law and its practice, including technology. See ABA Model Rule 1.1. Interestingly, the ABA Opinion appears to permit communication that is "automated", although it might permit a juror to know that they were viewed because it does not bar "automated" or passive responses to a juror, not otherwise written or initiated by the attorney or someone on the attorney's behalf. This is something to be aware of when gathering all potential authorities for guidance.
At the end of the day, information posted on public sites, or sites that the public may access, is fairly used in litigation information-gathering. However, take care if you are an attorney gathering information, or directing another to do so on your behalf. There are important ethical limitations to comply with. Additional research is recommended, outside of the basic framework of information provided in this article.
Advice to Clients Concerning Social Media
Finally, knowing that opposing parties or attorneys may well be viewing the webpages and social media postings of your clients, what should you tell your clients? Well, remember your ethical obligations, first and foremost. Remind your clients to preserve all information in native format. That is key to preserving not only the information visible on its face but also the metadata. Advise your clients concerning litigation holds, and requirements that no potentially relevant evidence be lost, altered or destroyed - this holds true whether the client is an organization or an individual.
The message here? Do not tell your clients to delete or alter information on their social media pages that may be damaging to their litigation. What's done is done - better to face it and address it than face spoliation sanctions or worse. That is the first take-away point.
Next, look to New York County Lawyers Association Ethics Opinion 745 (2013): Attorneys may advise their clients in New York concerning what they should/should not post to social media; privacy settings; what existing postings they may or may not remove; and the implications of social media posts on a case. The same rules apply to legal advice in other contexts - i.e. Professional Rules 3.1, 3.3 and 3.4. (Keep in mind that the Opinion only addresses civil cases, and advises that attorneys in criminal cases may have different ethical considerations.) But, do not be confused - an attorney may advise a client as to the affect of social media postings on a litigation, but not so as to advise a client concerning what to delete or alter. Remember the first take-away point in this area. Rather, the attorney may advise the client to stop posting, the attorney can advise concerning privacy settings and public versus private pages, and the attorney may advise about the removal of materials that have no impact or relevance to the potential or existing litigation. According to the Opinion, an attorney may technically advise a client to take down material from social media so long as there is no violation of a duty to preserve, and no spoliation, especially if the substance of the post is preserved in cyberspace or on the client's computer should it be needed later. Again, remain mindful of litigation hold requirements. See QK Healthcare, Inc. v. Forest Labs., Inc., Index No. 117407/09, 2013 N.Y. Misc. LEXIS 2008 (Sup. Ct. N.Y. County May 8, 2013).
As a best practice, though, I would not recommend ever telling a client to take anything down from a private or public page once posted if litigation is commenced or anticipated, and if the post has even remote relevance to the subject matter of the litigation - since you are likely not going to be able to monitor a client's every action on the site to ensure they act in a way commensurate with your advice. If, however, you ever do advise a client concerning the removal of posts, make certain to memorialize the advice in writing, so that you have a clear record of what you advised - or what you advised against. I submit it is better to advise a client to place a hold, keep the account active (even if that means logging-in periodically so the account is not shut down by the provider for inactivity), and advise the client not to post anything new unless it is completely unrelated to anything involving the case (which requires a case-by-case assessment). Importantly, certainly DO NOT ever advise clients to "clean up" social media pages.
Juror Postings on Social Media During Trial
A final thought now, from a slightly different perspective - attorneys are not the only ones receiving instruction on social media usage in legal proceedings. Starting in August 2012, the federal courts had new model jury instructions for civil and criminal cases. The instructions tell jurors not to research matters before them on the Internet or social media. Jurors are also instructed not to communicate with others during trial or deliberations on BlackBerry, iPhone, other cell phones, e-mail, Twitter, Facebook, Instagram, LinkedIn, YouTube, or other technology. The instructions are to be given at the start of trial, during trial and before deliberations. The District Judges and Magistrate Judges of the courts are also free to adapt or modify the language of the guideline instructions as needed for trials they conduct. In May 2009, the State of New York had similarly modified its preliminary jury admonitions in criminal matters.
However, some jurors across the country have taken to the Internet and social media before and during deliberations. While there have been concomitant requests for mistrials, they are not often granted. Remember, just because a juror Tweets, does not necessarily translate into a mistrial. See the case of U.S. v. Liu, 12-CR-934(RA) (S.D.N.Y. Nov. 14, 2014). Liu was a federal criminal trial - the defendants were accused of conspiracy to commit immigration fraud.
Several jurors Tweeted during the trial. Some of the Tweets included: "Add in just one song & dance number and this federal case would rival anything I've seen on broadway #juryduty rocks"; "The bloody courtroom is freezing"; "one of the defense [attorneys] had the balls in his summation to say that his client was just trying to help poor refugees from rural communities who didn't have the education to get asylum on their own. At $11k a pop"; and "these people prey on the fear and ignorance of applicants. it's [sic] horrible."
Following discovery of the Tweets, the defense argued that the Tweets provided evidence of bias by the jurors, disregard for the Judge's instructions, and a violation of the defendants' Sixth Amendment right to a trial by an impartial jury. The Court, however, denied the defenses' request for relief and a new trial. Although Juror 10 was dismissed from service because of her Tweets, rising to the level of improper and inappropriate conduct, Juror 2 was not found to have violated rules, and was not dismissed. The Judge further did not grant a mistrial.
The Court held that regardless of the particular issue, the Court must assess the "likely prejudicial impact" of the potential juror misconduct. The Judge found that jurors who Tweet during a trial may, in certain circumstances, threaten the Sixth Amendment right of defendants. However, the Court found that Juror 2 did not fail to answer voir dire questions honestly in the way they were posed, did not violate the Court's instructions because Juror 2 did not Tweet about facts and circumstances in the case, and Juror 2 was not failing to pay attention because she was concerned about her novel-writing. In fact, she demonstrated command of the facts and rapt attention. While vigilance is warranted in this new social media age, Juror 2 in this case was not biased or inattentive.
Today, we live in a world of nearly non-stop technological communication, and social media is changing our legal system - presenting new and different challenges that we as attorneys and officers of the courts must adapt to and address.