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Issue link: https://kentuckybenchandbar.epubxp.com/i/450788
sites and the potential for existing sites to c hange their terms and conditions. The third kind of occurrence is the most troublesome from an ethics perspective. The committee believes that in this situation "[t]he lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the site." In other words, sticking with the drive-by analogy, it is like a neighbor telling a juror the lawyer just drove down the street. But, note that not everyone agrees with the committee. In 2012, the Association of the Bar of the City of New York Committee on Professional Ethics ("ABCNY") concluded that a network-generated notice informing a juror that the lawyer has reviewed his or her social media page was a prohibited communication. The New York County Lawyers' Association Committee on Professional Ethics reinforced ABCNY's conclusion, holding that even an inadvertent contact with a prospective or sitting juror in the form of an automatic notification could be an ethical violation. Both associations stopped short of saying that such inadvertent contact with jurors would lead to discipline. The committee mentioned these precedents in the formal opinion, but rejected their conclusions. CHASING A JUROR DOWN THE RABBIT HOLE What happens when a lawyer finds more than he or she bargained for on a juror's ESM? The formal opinion addresses, but does not conclusively answer, what a lawyer is to do when he or she becomes aware of juror misconduct online. "Model Rule 3.3 and its legislative history make it clear that a lawyer has an obligation to take remedial measures including, if necessary, informing the tribunal when the lawyer discovers that juror has engaged in criminal or fraudulent conduct related to the proceeding." (emphasis added). When a juror engages in improper conduct that falls short of being criminal or fraudulent, a lawyer's affirmative obligation is less clear. According to the formal report, in certain instances, applicable law might treat improper jury activity (such as violating a court ordered ban on ESM during trial) as conduct that triggers a lawyer's duty to take remedial action. 3 Given the lack of a hard-and-fast rule when it comes to improper conduct, some lawyers might think it is better to ignore jurors' social media in order to avoid potentially problematic ethical issues. Indeed, there are some lawyers who shun social media altogether because they b elieve it is fraught with hazards. How many problems is social media use really causing in the courts, though? According to a Federal Judicial Center Survey ("survey") from May 2014, fewer than one might think. 4 In November 2013, the Federal Judicial Center sent a questionnaire to all active and senior federal district judges to gauge the effect of social media in the courtroom. Only 33 of the 494 judges (7 percent) who responded reported any instances of jurors using social media during trial – and even then, in only one or two of their cases. Lawyers may be wary of jurors' use of social media during trial, but those concerns, according to the survey, are largely unsubstantiated. The survey was not only interested in jurors' use of social media, but also lawyers' use. Of the 348 judges who responded to the question about attorney usage, 73 percent, or 255 judges, indicated they did not know the number of trials, if any, in which attorneys have used social media during voir dire. The looming question, at least from an attorney perspective, after reviewing the survey is not the concerning prevalence of jurors' social media misuse, but whether lawyers use it to find jurors in the first place. If they do, this effort is going largely unnoticed by judges. BEST PRACTICES The formal opinion "strongly encourages" judges and lawyers to discuss the court's expectations concerning lawyers reviewing jurors' Internet presence. Based on the information revealed in the survey, there is a lot of room for improvement in this area. Only 31 percent of the 466 responding judges reported addressing the issue of attorneys' use of social media to research prospective jurors during voir dire, with 120 judges forbidding it and only 23 judges directly allowing it. Of equal importance, according to the committee, is the judges' notice to jurors that their backgrounds will be of interest to the litigants and that the lawyers in the case may investigate their ESM and websites. With ethical guidance from the American Bar Association now in place, it is time that conversations about jurors' social media use – and attorneys' review of that social media use – start taking place more frequently. Lawyers should draft their own internal policies about reviewing jurors' online presence and judges should address the issue early and often in the courtroom. It is time that we stop being hesitant of how t o use social media and instead construct policies and procedures that establish parameters for its effective use, with the f ormal opinion serving as a solid starting point. Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation. She also litigates and counsels clients in the area of general constitutional and governmental law and has experience in litigating energy and environmental matters. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com. 1 T he Formal Opinion refers to jurors as including both potential and prospective jurors who have b een empaneled as members of a jury, unless there is reason to make a distinction. The same is done for purposes of this article. 2 Specifically, ABA Model Rule 3.5 states: "A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means pro- hibited by law; (b) communicate ex parte with such a person during the proceeding unless au- thorized to do so by law or court order; (c) com- municate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to commu- nicate; or (3) the communication involves misrep- resentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribu- nal." 3 Though the Kentucky Supreme Court has not di- rectly addressed the nature of a lawyer's duties with respect to juror social media activity during trial, the Court has made it clear that jurors must be truthful in voir dire about social media use if asked, and trial courts must afford lawyers suffi- cient opportunity to explore the nature of juror so- cial media relationships with litigants during voir dire. For example, in Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012), the Court remanded a criminal case for a post-conviction hearing into the nature of two jurors relationships with the fam- ily of the victim where (1) those two jurors were not truthful during voir dire about those relation- ships; and (2) the court did not afford defendant's counsel a sufficient opportunity to explore those relationships during voir dire. 4 The Federal Judicial Center, Jurors' and Attorneys Use of Social Media During Voir Dire, Trials, and Deliberations, (May 1, 2014), available at: www.fjc.gov/public/pdf.nsf/lookup/jurors-attor- neys-social-media-trial-dunn-fjc-2014.pdf/$file/ju- rors-attorneys-social-media-trial-dunn-fjc-2014.pdf. 13 B&B; • 1.15