Can a New Hampshire lawyer research jurors on social media during a trial, and what crosses the line into prohibited contact?

Plain-English summary

The Committee addressed when a lawyer may research jurors online. Starting from Rule 3.5, which bars ex parte contact with a juror during a proceeding unless authorized by law or court order, the opinion concludes that a lawyer may view publicly available information about a juror but may not send an access request such as a friend request or a request to connect. Following ABA Formal Opinion 466, the opinion treats such an access request as a prohibited "communication," and notes that Rule 8.4(a) extends the limits to anyone acting on the lawyer's behalf, such as an investigator. The opinion offers the analogy that driving past a juror's house to gather public information is permissible, but knocking on the door and asking to look inside is not.

On automated notifications, the opinion notes jurisdictions are split: the ABA, the Colorado Bar, and the DC Bar treat a platform-generated notice as a communication from the platform, not the lawyer, while the New York City Bar concluded an automatic notification could be a prohibited communication, particularly where the lawyer knew it would be sent. The Committee adopts the stricter position: any notification of a lawyer's access to a juror's social media, even an automated website notice, is a violation. It states that a competent lawyer (Rule 1.1) will know a platform's notification settings before researching a juror, and gives LinkedIn's view notifications as an example.

The opinion also addresses the duty to report juror fraud. Under Rule 3.3(b), a lawyer who knows a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding must take reasonable remedial measures, including, if necessary, disclosure to the tribunal. The opinion stresses Rule 3.3(b) has no exception for information that disadvantages the lawyer's own client, using the example of a juror's undisclosed public statements that would have to be reported even though they appear favorable to the client. It notes the elevated stakes of inadvertent contact once a jury is seated, where objectionable contact could cause a mistrial rather than the loss of a single juror.

In practice

The opinion holds that, under the New Hampshire rules as they stood when it issued, reviewing a juror's public online presence is permitted and, citing Rule 1.1, may be part of competent representation, but the lawyer must avoid any communication with the juror. Any access request is prohibited contact under Rule 3.5, and the Committee treats even an automated platform notification of the lawyer's viewing as a violation. The opinion applies Rule 8.4(a) to investigators acting for the lawyer and Rule 3.3(b) to require reporting juror fraud the lawyer discovers, with no exception for information adverse to the lawyer's client. The opinion lists practical points the lawyer should consider: learning the platform's notification system, discussing the risks and benefits of social media investigation with the client, and considering whether to ask the judge to notify jurors that lawyers may view public-facing information.

Common questions

Q: Can a New Hampshire lawyer look at a juror's Facebook or LinkedIn profile during trial?

A: Yes, as to publicly available information. The opinion concludes a lawyer may view a juror's public social media presence before and during trial, applying Rule 3.5 and ABA Formal Opinion 466.

Q: Can a lawyer send a juror a friend request or connection request?

A: No. The opinion treats an access request such as a friend request or request to connect as a prohibited "communication" with the juror under Rule 3.5.

Q: What if the platform automatically tells the juror that the lawyer viewed their profile?

A: The Committee adopts the stricter view that any notification of the lawyer's access, even an automated one such as LinkedIn's view notice, is a violation, and says a competent lawyer should know a platform's notification settings before researching a juror.

Q: If a lawyer finds out a juror lied during voir dire, must the lawyer report it even if the juror seems favorable to the client?

A: Yes. The opinion explains that Rule 3.3(b) requires reasonable remedial measures, including disclosure to the tribunal if necessary, and contains no exception for information that disadvantages the lawyer's own client.

Q: Does the rule apply to an investigator the lawyer hires?

A: Yes. The opinion states Rule 8.4(a) extends the limitations to anyone acting on the lawyer's behalf, such as an investigator.

Background and rules framework

The opinion interprets New Hampshire Rule 3.5 (impartiality and decorum of the tribunal), which prohibits ex parte juror contact during a proceeding absent legal authorization, and reads it alongside Rule 8.4(a) (acts through another), Rule 1.1 (competence, including technology), and Rule 3.3(b) (remedial measures for fraud related to a proceeding). It also references New Hampshire procedural rules limiting juror contact (NH Rules of Civil Procedure 38(e), NH Rules of Criminal Procedure 28(a), and Superior Court Administrative Order 2016-006).

Citations and references

Rules of Professional Conduct:

• MR 3.5 / NH Rule 3.5 (impartiality and decorum of the tribunal; juror contact)
• MR 3.3 / NH Rule 3.3(b) (remedial measures for fraud related to a proceeding)
• MR 1.1 / NH Rule 1.1 (competence)
• MR 8.4 / NH Rule 8.4(a) (acting through another)

Cases:

• Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012), undisclosed juror Facebook connection to victim's family

Other opinions cited:

• ABA Formal Opinion 466, Lawyer Reviewing Jurors' Internet Presence
• NYC Bar Formal Opinion 2012-2 (automated notification as juror contact)
• NYSBA Social Media Ethics Guidelines (June 2019)

See also

• ABA Formal Op. 466: Lawyer Reviewing Jurors' Internet Presence
• NH Bar Ethics Op. 2012-13/05: Social Media Contact With Witnesses
• ABA Formal Op. 478: Independent Factual Research by Judges Online

Source

• Landing page: https://www.nhbar.org/2019-20-03-juror-investigation-using-social-media
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/06/14110245/EO-2019-20-03-Juror-social-media-opinion-FINAL-6-12-20.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

NEW HAMPSHIRE BAR ASSOCIATION

                                       Juror Investigation Using Social Media

                                       Ethics Committee Opinion #2019-20/03


     ABSTRACT:

    Under Rule 3.5, a New Hampshire lawyer may review a juror’s public social media presence online but

may not contact the juror and must avoid any notification that the juror’s social media platform has been
accessed by the lawyer. While a lawyer must exercise care, a review of a juror’s social media presence may be
ethically required in providing competent representation under Rule 1.1.

     ANNOTATIONS:

   Under Rule 3.5, a lawyer may review the social media platforms of jurors before and during trial but

may not reach out to make contact with the juror.

   A lawyer must avoid any communication with the juror, including any automatic notification that his or

her social media page is being accessed by a lawyer on the case.

   The practice of reviewing a juror’s online presence is an important part of current day trial work and in

many instances could be required in providing competent representation. See NH Rule of Professional Conduct
Rule 1.1.

                                             Juror Investigation Using Social Media

     A competent lawyer in today’s culture of over-sharing on social media will rightly consider when and

how to research jurors online. This research can be vital both before jury selection and throughout the duration
of trial. This opinion addresses the ethical considerations in this area.
Our starting point in analyzing the issue is Rule 3.5. The Rule prohibits ex parte contact with a juror
during a proceeding unless specifically authorized by law or a court order. See Rule 3.5 (a) and (b). 1 Note that
this prohibition is distinguished from contact with a juror after the proceeding. See Rule 3.5 (c). An access
request through social media (friend request, request to connect, etc.) sent by a lawyer to a juror is considered a
“communication” prohibited by the rule. See “Lawyer Reviewing Jurors’ Internet Presence”, ABA Formal
Opinion 466. Finally, Rule 8.4 (a) extends these limitations to anyone acting on the lawyer’s behalf, such as an
investigator.
While proactive communication, including a request for access to a social media page, is prohibited, a
lawyer is not prevented from viewing online information regarding a juror that is publicly available. See ABA
Formal Opinion 466 at pg. 4. By analogy, while driving past a juror’s house to gather publicly available
information about the juror is permissible, knocking on the door and asking to look into the house is not. Id.
The question of what constitutes a “communication” is more complicated. Jurisdictions are conflicted as
to whether automatically generated notifications from a social media platform to a juror constitute

1
This ethical rule is consistent with the procedural rules that limit contact with jurors. See NH Rules of Civil Procedure 38 (e), NH
rules of Criminal Procedure 28 (a) and Superior Court Administrative Order 2016-006 (requiring a motion to obtain juror contact
information). Note that the procedural rules specifically authorize the Court to issue sanctions and protective orders as necessary for
violations.
communication and therefore objectionable contact with the juror. See NYSBA “Social Media Ethics
Guidelines”, pg. 34 (June 2019).
The ABA, the Colorado Bar Association and the DC Bar hold the view that the automatic notification is
triggered by the social media platform and therefore is not a communication from the lawyer to the juror. Id.
Instead, it is a communication between the platform and the juror and therefore not prohibited under the rule. Id.
In contrast, the NY City Bar concluded that even an automatic notification sent by a social media
platform could be a communication particularly if the lawyer knew that the automatic notice was going to be
sent. See NYCBA, Formal Op. 2012-2 (2012). At least one federal jurisdiction has concluded that there is no
recognized right to view the social media platform of a juror and doing so could threaten a juror’s willingness to
participate in the democratic process. See “Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century
Jury Selection”, (ABA February 18, 2016)
The Committee adopts the latter position. In the Committee’s view, any notification of a lawyer’s access
to a juror social media platform, even if it is sent via an automated website notification, is a violation of the
Rules. It is a lawyer’s obligation to understand what “footprint” the lawyer’s access is leaving behind for the
juror, particularly in light of the risk to a juror’s sense of security when participating in the trial process. For
example, if a lawyer is using LinkedIn to view publicly available information about a juror, the LinkedIn
service will automatically send a notice to the juror that someone has viewed the page. Whether or not the
identity of the viewer is visible to the juror depends on the settings of the viewer’s account. A competent lawyer
will be familiar with the notification settings of a social media platform before researching a juror. See Rule 1.1,
ABA comment 8 (a competent lawyer should remain “abreast of changes in the law and its practice, including
the benefits and risks associated with relevant technology”).
Notably, there is elevated risk presented by inadvertent contact with a juror during trial versus contact
with a juror before the juror is seated. While objectionable contact during the selection process could cause
disqualification of one juror, objectionable contact during the trial could cause a mistrial. See NYCBA Formal
Opinion 2012-2 (2012). It is advisable to speak to the client about the risks and benefits of juror investigation at
each stage in the case. Depending on the case, particularly if the jury is seated and the evidence has begun, it
may be strategically prudent to not engage in any jury investigation through social media.
A lawyer viewing jurors’ online presence should also be aware of the requirement to report fraud by a
juror if discovered. NH Rule of Professional Conduct Rule 3.3 (b)) states:

           A lawyer who represents a client in an adjudicative proceeding and who knows that a person
           intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
           proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
           tribunal.

Significantly, Rule 3.3 (b) does not include an exception in situations where disclosure of the information you
encounter is to the disadvantage of your client. For example, defense counsel may find that a juror seated on a
domestic violence case has written lengthy columns on a public social media platform regarding his belief that
victims in domestic violence cases typically exaggerate abuse. This information was not disclosed during voir
dire. While clearly indicative of a juror favorable to the client, the information would need to be turned over to
the court and could risk a mistrial. The current language of Rule 3.3 (b) also supersedes prior guidance from this
Committee relating to a lawyer’s obligation to report fraud committed by third party non-clients. See Rule 3.3
(b), comment 3.

   Conclusion:

    The Committee stresses that vigorous juror research can be an important element of trial strategy.

However, a careful balance must be struck that avoids unethical contact with the juror while still providing
appropriate access to the wealth of public information available. This information not only educates the lawyer
on the jury generally, it could lead to discovery of juror misconduct. See Sluss v. Commonwealth, 381 S. W. 3d
215 (KY. 2012)(where post trial, it was revealed that two of the jurors were Facebook “friends” with the
victim’s mother and did not provide this information during voir dire.); see generally “Voir Dire Becomes Voir
Google: Ethical Concerns of 21st Century Jury Selection.” (ABA February 18, 2016)
A lawyer should consider the following practical points when deciding how or whether to investigate the
public online presence of a juror:
• Familiarize yourself with the notification system of the specific online platform you intend to use.
Does the online platform provide an automatic notification of public “views” to the juror? If so,
consider whether it is possible to block the viewer’s identity to prevent the risk of a report of
intimidation if the juror recognized the person viewing the public page.
• Speak to your client about the risks and benefits of investigation via social media. Explaining the
risk of a mistrial at certain stages of litigation may convince the client that the risk is not worth the
benefit.
• Consider whether you should ask the judge to notify the jurors that the lawyers are permitted to view
public facing information on social media. This would help reduce the damage to your client if a
juror did find out that you had viewed their information.

   NH RULES OF PROFESSIONAL CONDUCT:

   Rule 3.5
   Rule 3.3
   Rule 1.1

   SUBJECTS:

   Competence

   Impartiality and Decorum of the Tribunal

   Juror Contact

   Duty to Report Fraud

   BY THE NHBA ETHICS COMMITTEE

           •   This opinion was submitted for publication to the NHBA Board of Governors at its
               June19, 2020 meeting.