Hashtag This, Retweet That: How the New Hampshire Bar Association Ethics Committee Addressed Investigation of Juror Social Media Accounts

By Dylan Harriger

??????In the era of technology and smartphones, juror research and investigative techniques have shifted in the legal field. A substantial portion of juror research now involves a diligent review of juror social media accounts. The shift to social media investigation has left many wondering if this process is legal or ethical under federal or state model rules.

??????On June 19, 2020, the New Hampshire Bar Association (“NHBA”) addressed this issue through?Ethics Committee Opinion #2019-20/03[1]?(the “Opinion” or the “New Hampshire Opinion”). The Opinion analyzes Rule?3.5[2]?of the New Hampshire Rules of Professional Conduct. Specifically,?NH Rules?3.5 (a) and (b)[3],?outline that a lawyer may not communicate “ex parte” with a judge, juror, or prospective juror, “unless authorized… by law or court order.” The Opinion notes that these no-contact rules similarly apply to those “acting on the lawyer’s behalf, such as an investigator,” as outlined in NH?Rule 8.4(a).[4]?The Opinion references?ABA Formal Opinion 466[5], highlighting that New Hampshire lawyers can look at “publicly available” social media accounts and other public online information concerning jurors. The Opinion provides that a friend request or connection request from a lawyer to a juror is considered a “communication,” and therefore prohibited under NH Rule?3.5.[6]

?????A pressing issue for New Hampshire, and many states, has been attempting to define what constitutes “communication” with respect to accidental or automatic social media interactions.?Relying on a NY City Bar opinion[7], the New Hampshire Opinion asserts that notifications sent automatically via social media could satisfy the threshold of “communication.” This assertion means in essence, that in New Hampshire, a notification equates to “communication,”?“[e]ven if it is sent via an automated website notification.”[8]?The Opinion further references LinkedIn — a popular career networking website. On LinkedIn, a user’s “view” of another user’s profile results in the individual receiving notification of who viewed their profile. Thus, this would equate to communication if an attorney was viewing the LinkedIn profile of a juror. \

??????The NHBA Ethics Committee advises that lawyers speak to clients regarding the pros and cons of juror investigation throughout?“each stage of the case.”[9]?The Opinion references?Rule 3.3(b)[10]?of the NH Rules of Professional Conduct which states that “a lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage in, is engaging in, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable measures” which can include disclosure to the tribunal. Notably, and as outlined in the Opinion, this rule does not excuse disclosure even if the discovered information is detrimental to a lawyer’s client.

??????The New Hampshire Opinion demonstrates the importance of regular review of state and ABA professional conduct rules and opinions.?For more information regarding what constitutes juror interactions on social media, look to your local governing body or bar association. As social media platforms continue to advance, we will likely see changes and hopefully clarity with opinions discussing social media and juror investigation. Relying on ABA Rule 1.1 Comment 8[11], the Opinion also reminds lawyers that competency includes staying “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”