Lawyers' group okays monitoring of jurors' websites

Paul Radvany in Thomson Reuters: News & Insight, July 08, 2011

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By Jennifer Golson

NEW YORK, July 8 (Reuters) - As long as you don't follow them on Twitter, friend them on Facebook or otherwise contact them, it is okay for lawyers to investigate jurors' social networking sites throughout a trial, according to an ethics opinion issued by the New York County Lawyers' Association.
 
The opinion "gives lawyers a way to ensure that jurors are not violating judges' instructions not to discuss the case until they've reached a decision," said Paul Radvany, a clinical professor at Fordham University School of Law and a former federal prosecutor.
 
In the nonbinding opinion, issued in May but not announced publicly until this week, the committee stated that an attorney may research a prospective juror's social-networking site, and that the research may continue after voir dire is complete.
 
But the attorney "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," the opinion said. "Moreover, the lawyer may not make any misrepresentations or engage in deceit, directly or indirectly, in reviewing juror social networking sites."
 
In certain cases this could prove difficult. For example, some popular sites, such as LinkedIn, allow a user to see who has recently visited his or her profile. Twitter sends users a message when they receive a new follower.
 
'ELECTRONIC TOWN SQUARE'
 
Other bar associations have issued opinions regarding access of the public internet pages of witnesses in a proceeding, but this is the first to address ongoing internet surveillance of jurors throughout a trial, according to Barry Temkin, chairman of the association's professional ethics committee and a partner at Mound Cotton Wollan & Greengrass.
 
Posting information on a social networking site that is available to the public is "the electronic version of the soapbox in the town square," said John Tomaszewski, chairman of the American Bar Association's ePrivacy Committee.
 
"We lawyers are fairly risk-averse people. We tend to be slower on the uptake when it comes to new technology," Tomaszewski said. "That means we need to have some guidance on how this technology can be used."
 
Valerie Hans, a Cornell Law School professor who specializes in jury issues, praised the opinion.
 
"Lawyers and judges are very aware of the possibility that jurors may by accident post status updates to Facebook or Twitter giving information that really must be private," she said. "Judges are really struggling with how to manage this as a trial procedure and lawyers are, too."