Rules of ethics limit lawyers’ communications with certain groups of people. For example, a lawyer may not communicate about a matter with a party who is represented by counsel. Similarly, a lawyer may not communicate with jurors during a trial. In some states, including Delaware, the prohibition on lawyer-juror communication continues even after the trial has concluded.
Because of these ethics rules, the definition of “communication” is very important. When I teach legal ethics and social media, I discuss “inadvertent” communications that can occur via social-networking sites. For example, at my direction, my paralegal “follows” a juror on Twitter, the juror may receive an email notifying him of his new follower. Is this a “communication”? Yes, it probably is because my paralegal “followed” the juror for the purpose of seeing what he is tweeting that may be relevant to the case.
But what if the juror follows me on Twitter long before the trial. During trial, the juror could view my tweets because they would appear in his timeline. Would I have “communicated” with the juror? Maybe. Assuming so, my communication would have been inadvertent, for sure.
There’s another scenario that I give in this context that, unfortunately for all parties involved, has come to fruition. In the Bank of America “hustle” case, one of the jurors has notified the court that one of the lawyers for the defense had reviewed the juror’s LinkedIn profile. Judge Jed Rakoff of the S.D.N.Y. said that, when an associate had viewed the juror’s LinkedIn profile, the firm had “communicated” with the juror. For those familiar with LinkedIn, you likely know that you can see who has “viewed your profile” within a certain period of time unless the user is not logged in or unless the user has a premium (paid) account, which enables him to block you from seeing his identity.
According to the WSJ’s MoneyBeat blog, the judge ruled that lawyers could conduct Internet research on potential jurors but only during the jury-selection period. Once trial began, that research was supposed to stop. (This, too, raises interesting questions. Why wouldn’t the court want to know if jurors were engaged in misconduct online during the trial? But that’s a whole different set of questions.) Apparently, the court has determined “no harm, no foul” because the case will proceed as scheduled with an instruction to the jury that the search was a mistake that they should disregard.
This story, however, should serve as a lesson to lawyers everywhere—understand how social-media works and make sure those who are working for you do, too. There are ethical implications, as well as the risk of significant costs to the client for failing to “get it.”
See also, M. DiBianca, Ethical Risks of Lawyers’ Use of (and Refusal to Use) Social Media (Del. L. Rev. 2011) (PDF).