Lawyers' Use Of Internet To Influence Jurors
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In an earlier article, we discussed the danger posed to an impartial jury system by the “Googling Juror.” In his article titled “Lawyers’ Use of Internet to Influence Jurors” (New York Law Journal, 6/12/12), Michael Hoenig cautions that “the danger to fair trials posed by Internet-surfing jurors is exacerbated by lawyer ‘advertising’ of their prowess or success on websites, by publishing case-specific information on firm sites or blogs or other Internet outlets, and by skillfully weaving inaccurate, misleading or self-serving messages, and ‘depositing’ them where straying jurors can ‘find’ them.”
Hoenig concludes that these can be purposeful stratagems or innocent puffing. He points out that despite First Amendment protections, courts can and should restrict prejudicial speech by attorneys. He cautions that lawyers must be diligent in reviewing whether their adversaries (or agents) might be depositing messages about case facts or party litigants, or extraneous, non-admissible information on websites, blogs or other internet locations with the expectation that a straying juror would find the information. Even if the specific facts of a case at trial are not discussed, prospective or sitting jurors can still peruse the attorney’s website, noting biographical information, the firm’s specialties, featured clients and the “war stories,” crusades or victories many firms describe. Hoenig believes that this information likely will be passed to other jurors.
Lawyers do have First Amendment rights to a wide range of speech but they are also subject to reasonable restrictions as officers of the court. Further, lawyers are bound by ethical rules. Rule 3.6 of the Model Rules of Professional Conduct prohibits an attorney from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 8.4 prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation” and also states, “a lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce to do so, or do so through the acts of another.” The article discusses the facts of some of the cases that are emerging in this important area of the law
Thus, it is essential that trial counsel perform their own internet investigation concerning both the subject matter of their upcoming trials, and their adversaries' internet materials, to determine whether prejudicial information available to prospective jurors has been posted.
Definitely a timely topic – I had to go to Essex Co (NJ Superior Ct) jury selection recently and quite a few potential jurors brought their laptops with them – in fact, wi-fi is offered for those waiting to be sent to court rooms. Very tempting in the midst of voir dire, after the facts of the case have been discussed by the judge, to check the internet during a break to see what information might be available.
It seems that a simple straightforward solution would be to seek an instruction from the court to counsel not to post anything on the internet during the pendency of a matter that touches upon the facts, issues or parties and their counsel. This is no different than the authority courts currently have to regulate counsels' contacts with the media to avoid jury taint. This would not be an interference with a lawyer's First Amendment right.
In principle, in any matter that is to be tried to a jury, it would be proper to prohibit counsel from discussing the merits of a case in a medium that is accessible to potential jury pool members immediately upon the filing of a complaint. This would not prevent lawyers from planting advantageous materials prior to filing a complaint. In that setting, however, the balance between First Amendment rights and protecting a prospective jury pool from bias is a closer and more difficult question.