Surveillance and Reconnaissance

Who says Jason Bourne can have all the fun? Desperate lawyers can revert to CIA tactics, too. Unfortunately, when the surveillance and reconnaissance is done in person, it comes at the risk of breaking professional rules of conduct. That is, if you’re caught.

A partner from Thompson & Knight told an associate to spy on potential jurors in the jury assembly room at a trial in Houston earlier this year. The partner instructed the associate to secretly take notes in the venire while the jurors were filling out their questionnaires.  The associate sat in the venire for an hour and a half until court personnel recognized her and asked her to leave. Even after that, the associate still shared her notes with her co-counsel.

When her cover was blown, her superior (the Thompson & Knight partner) refused to hand over the fruits of the associate’s secret mission. After a “Motion to Remedy Defense Misconduct” from opposing counsel Mo Taherzadeh, the judge decided to throw out the panel and set a date for a new trial. (For a sarcastic take on this story by Above the Law, click here. For a less sarcastic discussion by the ABA, click here.)

So what’s the big deal? How is this different from, for instance, overhearing a juror make a comment about how much he hates steel companies in the elevator on the way to the courtroom? Does the attorneys’ conduct warrant disciplinary action?

Well, it appears that the “jury” is still out on that issue. There is actually no specific rule that prohibits the attorneys’ conduct. But at a minimum it is “deceptive and unethical,” according to Cyril R. Vidergar (chair of the ABA Section of Litigation’s Ethics and Professionalism Committee’s Young Lawyers Subcommittee). It might just be considered an unfair tactic under Texas Disciplinary Rule of Professional Conduct 3.04, which basically states that attorneys must be fair to one another. Regardless, as of now it may be a good idea to shy away from acting in a way that could be construed as giving you an unfair, unethical advantage.

While the actions of the Thompson & Knight attorneys appear to be underhanded (Taherzadeh characterized it as “adopting the adage ‘it’s easier to beg forgiveness than ask for permission’”), what should that matter in light of the recent ABA opinion effectively allowing lawyers to “spy” on prospective jurors using social media?

According to the opinion, attorneys viewing jurors’ social media profiles allows them to identify jurors who may be tainted by improper bias or prejudice. There is, after all, a “strong public interest” in doing so. Why should there be a difference if the observational “spying” occurs in person rather than online?

The line will probably be drawn according to Rule 3.04. If the “spying” turns out to give a fundamentally unfair advantage to one side, perhaps that conduct should be prohibited. Further, if attorneys were actually allowed to eavesdrop on jurors in the jury assembly room, it would likely put all the jurors on edge; and it would become a game between attorneys to see who overhears the most. Whereas, if they simply viewed jurors’ social media profiles online, it would give both sides equal access to public postings without invading anyone’s privacy.