The Jury Is Out: Defining Inappropriate Communication in the Digital Age

The Jury Is Out: Defining Inappropriate Communication in the Digital Age

Should you google jurors during voir dire?  What about during the trial?  If you search for jurors on social media networks are you zealously representing your client or impermissibly contacting a juror? These are the ethical questions arising around the country as lawyers continue to discover both the advantages and ethical land mines  inherent in practicing law in the digital age.  It has become fairly well established that sending a friend request to a represented party, witness or juror constitutes contact–generally of the impermissible sort unless it is an unrepresented witness and the friend requestor identifies herself and the reason for the contact.  See Philadelphia Bar 2009-2, San Diego Bar Opinion 2011-2, and New York State Bar Opinion 843.

But, what about information on a public page?  That seems to be ok also UNLESS…and here’s the new wrinkle…the juror knows that you are viewing her page because then you may be deemed to have “communicated” with the juror.  Apparently, some social network sites allow a person to see who has view the person’s page and if that is the case, then the New York City Bar Association has determined that you have communicated with that person.  If you have communicated and that person is a juror then you have impermissibly “contacted” that juror….Wow, this gives added meaning to the American Bar Association’s decision to amend the comments to the competence rule to include the obligation to understand the advantages and disadvantages of technology.   The digital age is upon us….google-er beware!