This article considers two recent ethics opinions that address the existence and scope of a duty to conduct research about jurors, and the limitations on that duty particularly when the research is conducted online. The Committee on Professional Ethics of the New York City Bar addressed these questions in Formal Opinion 2012-2 (City Bar 2012-2), and in April 2014 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 (ABA 466). In many respects the two opinions are congruent, but there is a material difference in their conclusions with respect to limitations on permissible forms of online research.
Rules That Govern
Before examining and comparing the two opinions, it is important to note that while New York lawyers might be inclined to conclude that they only need to pay attention to the city bar opinion, that is not necessarily correct. New York’s Rule of Professional Conduct (RPC) 8.5 addresses what ethical rules govern New York lawyers in connection with litigation being conducted in another state or jurisdiction where they are lawfully admitted (including admission pro hac vice). RPC 8.5 (b) provides as follows:
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