The American Bar Association released a formal ethics opinion on April 24 to clarify the lengths to which lawyers should go when checking out jurors and potential jurors on social media, such as Facebook, Twitter and LinkedIn.
“Lawyers need to know where the line should be drawn between properly investigating jurors and improperly communicating with them. In today’s Internet-saturated world, the line is increasingly blurred,” ABA Formal Opinion 466 notes.
In a nutshell, a lawyer may review a juror or prospective juror’s openly-available Internet activity but may not communicate directly or through an intermediary with the person.
Looking at a juror’s website or social media activity without alerting the juror is permissible, but a lawyer may not make an access request—either directly or through an intermediary—to look at information that the juror has blocked from public view by means of privacy settings. “The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b),” according to the opinion.
The new ABA opinion draws on ABA Model Rule 3.5 of Professional Conduct, which says a lawyer “may not communicate with a potential juror leading up to trial or any juror during trial unless authorized by law or court order.”
Making an access request either directly or through an intermediary would be a form of ex parte communication and prohibited by Rule 3.5(b), the ABA says.
The opinion goes on to say that if a juror receives notice that his Internet activity is being viewed by a lawyer or intermediary—for example, a LinkedIn notification that the lawyer has viewed the juror’s profile—that does not count as ex parte communication by the lawyer. Rather, the social media service is communicating with the juror via an automatically generated notice.
The trial judge’s expectations for lawyers’ Internet vetting of jurors must be observed, the ethics opinion adds, and judges should consider advising jurors that their backgrounds will be of interest to the litigants, including their social media activity and websites. A heads-up by the trial judge to prospective jurors that lawyers may review their publicly-available Internet activity “will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network,” the opinion says.
A lawyer should keep the review “purposeful and not crafted to embarrass, delay, or burden the juror or the proceeding,” or risk running afoul of Professional Conduct Rule 4.4(a).
The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.
“Rule 3.3(b) does not prescribe what the lawyer must do in that situation,” the opinion says.