Facebook Jurors: Candor Required!

Facebook Juror Research

Attorney Petev Tenev’s client, Dr. Henry Acosta, was sued by a former business partner in a dispute over the dissolution of a dental practice. Dr. Acosta’s wife later obtained a list of the jurors and researched them on Facebook. She learned that one of the jurors was Facebook friends with a hygienist that worked for the plaintiffs. As a result, she asked Tenev to move to strike the juror.

However, Tenev failed to make the court aware of this connection until the trial date. Per the opinion, the trial judge “asked Tenev how she came to learn this information, and a lengthy discussion ensued during which Tenev gave three different answers,” none of which “involved any contact with the juror.” Tenev v. Thurston, 2016 BL 70906, Fla. Dist. Ct. App. 2d Dist., No. 2D14-4566, 1, 3/9/16.

The trial judge and the parties considered several options, including striking the juror and proceeding with trial. Nevertheless, the Plaintiff moved for mistrial, arguing “there was no way he could receive a fair trial given that Tenev [and Dr. Acosta’s wife] had attempted to make improper contact with the juror.” Id at 2.

The trial judge sided with the Plaintiff. The court granted a mistrial and noted that Tenev acted in “bad faith” by responding to the court’s questions in a dishonest manner. Id. Furthermore, the trial judge ordered Tenev to pay $74,000 to cover attorneys’ fees and costs the Plaintiff incurred in preparation for trial.

Appeal: Duty of Candor Toward the Tribunal and Misconduct

Judge Daniel H. Sleet of the Florida Second District Court of Appeal reversed the trial court’s order in its entirety. Judge Sleet held “[t]here is no prohibition in Florida law against an attorney researching jurors before, during, and throughout a trial so long as the research does not lead to contact with a juror.” Id at 4. Moreover, “the trial court’s findings lack the high degree of specificity required to support the imposition of sanctions.” Id at 3.  

In spite of this, Judge Sleet held “the [trial] court arguably ma[de] a sufficiently detailed finding upon which to sanction Tenev for being dishonest before the court.” Id.

Under Florida Bar Rule 4-3.3(a), “[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.” See R. Regulating Fla. Bar 4-3.3(a)(1). Similarly, under Florida Bar Rule 4-8.4(c), “[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” See id at 4-8.4(c).

With respect to potential ethical violations, Judge Sleet reasoned “the aggressive inquiry by the trial court as to the legal basis for her motion to strike the juror was met with inarticulate, evasive, and dishonest answers;” therefore, “she violated her oath as an attorney to be honest before a tribunal.” Tenev, 2016 BL 70906, No. 2D14-4566 at 3.

With respect to the “bad faith” sanctions, Judge Sleet reasoned the following.

“Tenev’s dishonesty was not a litigation tactic undertaken solely for bad faith purposes. Tenev initially set out to notify the court of a potentially biased juror before trial commenced. Such was her duty as an officer of the court, and she clearly was not attempting to unduly delay or protract litigation or to seek an unfair advantage against Thurston.”

Id.

To read the full opinion, click here.

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