The Risk Manager, Spring 2013

In Sluss v. Commonwealth (Ky., No. 2011-SC-000318-MR (9/20/12)) the Kentucky Supreme Court provided its first guidance for Kentucky lawyers using social media to investigate jurors. The opinion described the issue as follows:

There is further an unsettled question about the extent to which counsel for a criminal defendant may investigate jurors during or after trial. The question generally involves whether the attorney engaged in inappropriate “communications” with a juror, such as adding the juror as a “friend” on Facebook directly through his own account or through a form of deception, or whether the information was truly public. If the information about a juror is available to the public on a social media site, ethics opinions from other jurisdictions suggest that counsel may investigate that information. …. Given many attorneys’ unfamiliarity with the minutiae of social media, it is not unreasonable for an attorney to be cautious as to his conduct while investigating jurors during the trial.

In fact, there is evidence that, while the practice of conducting intensive internet vetting of potential jurors is becoming more commonplace, “lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.” (footnotes and citations omitted)

In determining its guidance the Court cited the New York County Lawyers Association’s Committee on Professional Ethics, Formal Op. 743 (May 18, 2011)(hereinafter Opinion 743) as follows:

It is proper and ethical under [Rule of Professional Conduct] 3.5 for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to “friend” jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror but must not “friend” the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any representations or engage in deceit, directly or indirectly, in reviewing juror social networking sites.

The Court then adopted the opinion’s procedure for a lawyer to report jury misconduct when misconduct is discovered:

In the event the lawyer learns of juror misconduct, including deliberations that violate the court’s instructions, the lawyer may not unilaterally act upon such knowledge to benefit the lawyer’s client, but must promptly comply with [Rule of Professional Conduct] 3.5(d) and bring such misconduct to the attention of the court, before engaging in any further significant activity in the case.

The Court concluded its consideration of this issue as follows:

Kentucky’s SCR 3.130(3.5) is similar to New York’s Rule 3.5 in that it prohibits certain communications between a lawyer and a juror, and distinguishes between conduct during the trial and after the jury has been discharged. The New York ethics opinion provides reasonable guidance for counsel by weighing the party’s right to have an impartial jury against the lawyer’s ethical duty not to interfere with jurors. This Court therefore adopts this model for the type of investigation an attorney may conduct before and during trial into a juror’s social media account. Importantly, SCR 3.130(3.5)(c) also clearly governs the circumstances when an attorney may communicate with a juror after the jury has been discharged. The same principles that apply to communications made before and during trial apply to post-trial communications as well. (footnote omitted)

We first brought the issue of using social networking sites to investigate a matter in the article Risk Managing Internet Social Network Investigations in our Spring 2012 newsletter. That article covered friending represented parties, witnesses, unrepresented potential witnesses, and Internet investigation of juror Internet and social networking postings. It is available on Lawyers Mutual’s website at Click on Resources, Subject Index, scroll to The Risk Manager, select the Spring 2012 issue, and select the article title.

In discussing the Internet investigation of juror Internet and social networking postings we cited Opinion 743 as useful guidance until Kentucky authority on the limits of such investigations was forthcoming. Happily, the Supreme Court found this opinion appropriate for its purposes in establishing guidance for Kentucky lawyers. (Unhappily, Opinion 743 was incorrectly cited in the article and is corrected as follows: New York City County Lawyers Association Committee On Professional Ethics Formal Opinion No.: 743, 5/18/2011.)

We have two comments regarding the Supreme Court’s guidance:

  • The Court framed the question in terms of “the extent to which counsel for a criminal defendant may investigate jurors during or after trial.” Opinion 743 makes no distinction between criminal and civil trials in applying its guidance. It is probably safe to conclude that the Court intended the guidance in Sluss to be equally applicable to civil as well as criminal trials. Supporting this conclusion is that the Court adopted Opinion 743 in the following language without differentiating between civil and criminal trials:

“This Court therefore adopts this model [Opinion 743] for the type of investigation an attorney may conduct before and during trial into a juror’s social media account.”

If in doubt, call the KBA Ethics Hotline.

  • Special Internet technology effort must be taken to comply with the requirement that: “[A] lawyer must not … communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring.”
    • In Opinion 743 the Committee observed in a footnote that avoiding juror awareness of monitoring is more difficult than it appears: “For example, as of this writing, Twitter apparently conveys a message to the account holder when a new person starts to ‘follow’ the account, and the social networking site LinkedIn provides a function that allows a user to see who has recently viewed the user’s profile. This opinion is intended to apply to whatever technologies now exist or may be developed that enable the account holder to learn the identity of a visitor.”