ethics of social media, part 5: social media as a research tool

THE ETHICAL IMPLICATIONSOF SOCIAL MEDIA

Brian C. Focht

Stiles Byrum & Horne, LLP

www.thecyberadvocate.com

THE ETHICS OF SOCIAL MEDIA

PART 5:

SOCIAL MEDIA AS A RESEARCH TOOL

SOCIAL MEDIA & THE COMPETENT ATTORNEY

NC RULES OF PROFESSIONAL CONDUCT

Important Provisions

1.1 – Competence

1.6 – Confidentiality

3.3 – Candor Toward the Tribunal

3.4 – Fairness to Opposing Party and Counsel

3.5 – Impartiality and Decorum of the Tribunal

4.2 – Communication with Persons Represented by Counsel

8.2 – Judicial and Legal Officials


Situation: Utilizing Social Media to investigate juryApplicable Rule(s): 1.1, 3.3, 3.5, 3.6, 5.3To Comply: Do not connect with or contact jurors; but use all reasonable means to investigate

Connecting, “friend-ing,” other contact prohibited

Improper conduct if juror discovers investigation?Even without intent?

New ABA Opinion says NO, many jurisdictions say YES



ABA Formal Opinion 466 (April 24, 2014)“The fact that a juror or a potential juror may become aware that a

lawyer is reviewing his Internet presence when a network setting notifies the juror of such dos not constitute a communication from the

lawyer in violation of Rule 3.5(b).”



NYC Bar Association Ethics Opinion 2012-02“Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may

run afoul of the Rules of Professional Conduct.”



General Rule:If you discover juror misconduct, you should probably report the

misconduct to the court, although this rule is by no means universal.



Has performing a reasonable investigation become a matter of attorney competence?



The Duty to Google

Johnson v. McCullough, 206 S.W.3d 551 (Mo. en banc 2010)To preserve the issue of juror misconduct, where such misconduct could have easily been discovered by a basic background check,

litigants must take reasonable steps to investigate jurors.


Situation: Social Media research on party/witnessApplicable Rule(s): 1.1, 3.3, 4.2, 5.3To Comply: No contact with represented party; do not use any form of trickery or dishonesty

Similar contact rules as jurorsWhat if party/witness discovers investigation?

Remember: Rules regarding truthfulness in statements to others and unrepresented parties

The case of Ohio prosecutor Aaron Brockler


Situation: Social Media research on party/witnessApplicable Rule(s): 1.1, 3.3, 4.2, 5.3To Comply: No contact w/ represented party; do not use any form of trickery or dishonesty

Other Jurisdictions:

New York State Bar Opinion No. 843

Oregon State Bar Ethics Committee Op. 2013-189

Philadelphia Bar Association Opinion 2009-02

San Diego County Bar Association Opinion 2011-2


Situation: Your judge is on Social MediaApplicable Rule(s): 3.5To Comply: Avoid ex parte contact regarding a pending matter; avoid the appearance of impropriety

States disagree significantly on this issue

Disclosure is always the best policy

Judges must consider the applicable Code of Judicial Conduct


BEST PRACTICES:1. Remember: THE RULES STILL APPLY

2. Learn about Social Media, and how to use it – it’s the best way to avoid unnecessary mistakes

3. NEVER ask someone else to research a juror in a manner you would be prohibited from using!

THE ETHICAL IMPLICATIONSOF SOCIAL MEDIA

Brian C. Focht

Stiles, Byrum & Horne, LLP

[email protected]

www.thecyberadvocate.com

mailto:[email protected]

http://www.thecyberadvocate.com/

ethics of social media, part 5: social media as a research tool

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