Ethical Issues That Arise From Social Media Use In Courtrooms
This article was originally published in the October 2013 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association.
With the rampant expansion of social media and online technologies over the past decade, it is no surprise that Facebook, MySpace, Twitter, Instagram, YouTube and blogs have made their way into the courtroom, pervaded the jury box, and even pierced the veil of judges’ chambers. This expansion of social media technologies has raised many questions about the use of the information that can be obtained and the ways attorneys go about obtaining that information. This article addresses some of the ethical issues that can arise when an attorney turns to social media platforms or online technology during a trial.
Social media research has been described as the wild West by some legal commentators, and for this reason bar associations throughout the country have started establishing parameters for ethical online social media research at trial. About a year ago, during the summer of 2012, the New York State Bar Association Committee on Professional Ethics issued Formal Opinion No. 2012-2, titled “Jury Research and Social Media.” To date, the opinion appears to be the most comprehensive analysis of the subject.
Formal Opinion 2012-2 addresses the ethical restrictions that apply to an attorney’s use of social media websites to research potential or sitting jurors. The starting point for this analysis was the New York Rules of Professional Conduct (RPCs) and in particular, RPC 3.5, which addresses the maintenance and partiality of tribunals and jurors. Among other things, RPC 3.5 states that “a lawyer shall not … (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the jury unless authorized to do so by law or court order.” This rule is similar to New Jersey RPC 3.5, titled “Impartiality and Decorum of the Tribunal.” Under New Jersey RPC 3.5(c) a lawyer shall not communicate ex parte with a juror or prospective juror except as permitted. Continue reading →
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