We write in response to ABA Formal Opinion 466 entitled, “Lawyer Reviewing Jurors’ Internet Presence,” issued April 24, 2014. It provides in relevant part that it is not an ethically prohibited communication if “a juror or potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such.”

We suggest that the ABA opinion does not appropriately protect jurors and insulate them from outside influences such as contact by counsel. We believe that the appropriate way to proceed when seeking to investigate jurors is set forth in the “Social Media Ethics Guidelines” issued on March 18, 2014 by the Commercial and Federal Litigation Section of the New York State Bar Association. Guideline 5.B provides that: “[a] lawyer may view the social media … of a prospective juror or sitting juror provided that there is no communication (whether initiated by the lawyer, agent or automatically generated by the social media network) with the juror.”

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