If Jurors Are On Facebook, Should You Be There, Too?

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training to law firms and lawyers who deal with the media.  Reach her at deb@page2comm.com.

In December, the Sarasota, Fla., courtroom of Senior Circuit Judge Nancy Donnellan saw yet another smart-phone equipped juror run up against the usual rules and expectations of courtroom decorum. 

 According to the Sarasota Herald-Tribune, after the first day of proceedings in a personal-injury lawsuit from a traffic accident case, Donnellan instructed the jurors “with the normal warning not to discuss the case with anyone and not to use the Internet to find more information about the case.”

 But one bored juror, surfing on his phone, decided to look up the people in the case on Facebook to see if he knew them.  He ended up sending a friend request to one of the defendants, who happened to be “an attractive young woman.”

After being admonished by the judge, he was dismissed from the jury.  Naturally, he quickly posted, “Score … I got dismissed!!” on his Facebook page.

The expectation that courtrooms – and legal proceedings generally – will somehow continue to exist in an Internet-free bubble is fading fast.  Reporters, jurors and interested members of the public routinely tweet, text and post at speeds far faster than a banging gavel. 

What to do, then, with the traditional sense of propriety that has kept attorneys and other legal professionals largely off of social media sites?

It is possible – even desirable, at this point – to live a Facebook-free life without being labeled a hopeless Luddite.  The site’s growth – the addition of new users – has been slowing in the U.S. and some recent studies show it losing ground as a venue for communication and networking.  Other tools, though, such as LinkedIn and Twitter, are demonstrating surprising staying power.  Missing out on the opportunities they present for marketing, coalition-building and information-sharing would be a real loss.

It might take a while for courthouse rules to catch up with the ubiquity of social media and there are sure to be more tense exchanges like the one in Sarasota to come.  But, eventually, judges, jurors, the media and the public will find a way to balance the desire for information (and the electronic means to transmit it) with the need for confidentiality and impartiality, just as they have with the advent of television cameras and laptop computers.

 Meanwhile, lawyers can make use of social media technology without running afoul of traditional expectations for confidentiality.  The Illinois Rules of Professional Conduct, Rule 3.6 [Trial Publicity] lays out specific guidelines for extrajudicial statements, noting exactly what information can be publicly shared without posing “a serious and imminent threat to the fairness of an adjudicative proceeding.”  Following this rule, attorneys are free to publish the claim being made in a matter, to share information already in a public record, to state that an investigation is in progress and/or to announce the scheduling or result of any step in litigation.

Attorneys can join social media and participate, ethically and effectively, in the robust public conversations it facilitates.

But they probably shouldn’t do it from their smart phones.  In court.