Samuel C. Stretton ()
An ABA opinion says lawyers can
research jurors on the Internet.
What are the limitations, if any, on investigation of potential jurors for an upcoming criminal trial?
In the past, lawyers would essentially use their gut to ascertain which jurors to select. In reality, that wasn’t a bad system and usually resulted in a fair jury panel.
Unfortunately, in this modern age where there is overwhelming information, there have been efforts to get jury lists in advance and to investigate the potential jurors. Clients who have money will sometimes have lawyers hire jury-selection consultants, who often have degrees in psychology or training in body language. How successful or unsuccessful this is remains to be seen. But every lawyer has to be careful about pretrial investigation of jurors. One could spend a lot of time, effort and money doing that and ignore where the time, money and effort should be spent: preparing a defense.
Further, any experienced criminal trial lawyer or civil trial lawyer who has tried many jury trials will know that one should never overthink picking a juror. Sometimes this overthinking process results in the elimination of people who, in reality, would be very good jurors. The bottom line is to seek someone who has a sense of fairness and doesn’t appear to have an agenda.
One wants to be careful when picking a juror with a strong personality, because if that juror goes against the lawyer’s position, he or she could sway others.
Many experienced trial lawyers adopt the position that if there is nothing really negative about a juror, he or she should be accepted. Although there are exceptions to every rule, this is not a bad rule and often results in a pretty fair jury panel.
Clearly, if one has the time, effort, money and desire to get the jury list and investigate jurors, one cannot go and approach jurors. A lawyer or investigator can’t interview jurors, family members or even close personal friends. Rule of Professional Conduct 3.5 notes a lawyer cannot seek to influence a judge, juror or prospective juror by means prohibited by law. Rule 3.5(b) prohibits ex parte communication with any juror. This rule has limitations about communicating with a juror after a case is done. Further, Rule 3.5(d) prevents conduct intended to disrupt a tribunal. Obviously, tainting a prospective jury pool by aggressive jury investigation could do so.
Another important issue is what one can do by checking jurors’ backgrounds using the Internet. There is apparently no problem with checking jurors’ backgrounds on the Internet, as long as they aren’t aware the lawyer is doing so. Pulling someone’s name up on the Internet and seeing what is written or said about them is fair game, if the lawyer has the time to do that.
What about using Facebook or other forms of social media? Social media could become a problem, particularly if the prospective juror were aware the lawyer was accessing Facebook or social media pages. Further, it could become a problem if the lawyer were to mislead the juror by attempting to become a friend on Facebook to get additional information.
The American Bar Association’s committee on legal ethics issued Formal Opinion 466 on this subject April 24. In essence, the opinion says it is not improper for a lawyer to look at a juror’s information on the Internet. The opinion allows a lawyer to even look at social media postings by the juror in advance or during a trial. But the opinion prohibits a lawyer from communicating directly with a juror or potential juror. Further, the opinion precludes a lawyer from “sending an access request to a juror’s electronic social media.”
Of interest is the fact that the opinion essentially holds that if the potential juror becomes aware that a lawyer is reviewing a juror’s Internet presence, such conduct would not count as a communication from the lawyer. This last point raises real concern and perhaps should be reconsidered.
The opinion suggests that lawyers, in advance, get a court order as to what they can and cannot do in terms of reviewing jurors’ material on the Internet. The opinion suggests that judges might talk with their local jury commissioners (an office that has been abolished in Pennsylvania) so jurors can be advised during orientation that they may be investigated by the lawyer. The opinion talks about a lawyer’s obligation to reveal to the court information the lawyer discovered about a juror if it shows improper conduct or bias by the juror. The opinion notes that the Rules of Professional Conduct do not have such a broad requirement under Rule 3.3. That rule is titled “Candor to a Tribunal.” In Pennsylvania, that rule deals more with a witness or evidence presented by a lawyer.
Comment 12 to Rule 3.3 notes that lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process. It notes prohibitions against bribing, intimidating or communicating with jurors, court officials or other participants. This comment suggests that the lawyer has to take remedial measures if he or she becomes aware of such conduct. The ABA’s opinion notes this requirement and cites Model Rule of Professional Conduct 3.3(b).
The committee noted if a potential juror could become aware that a lawyer is reviewing information about them on the Internet, that does not constitute a communication under Rule 3.5(b). That may be the case, but it is a very great concern if the juror becomes aware. Jurors get easily intimidated. In criminal cases, at least in Pennsylvania, the jury questionnaires are collected after the jury selection and destroyed. This is to prevent any client from getting jury information and sending Christmas cards or contacting a juror, particularly after a verdict. Jurors sometimes become frightened during trials.
If a juror were aware that lawyers were investigating them as part of a case, it would seem that could have a negative effect on the juror. It could also spoil the juror’s service or make them concerned that something could happen to them and the lawyer now knows where they are, or maybe the client does. It seems that the ABA’s committee should reconsider this.
In summary, it appears all right to check out a juror on the Internet. But in the context of a potential juror, it does not appear all right if the lawyer is checking the juror out and then lets the juror know someone is doing that. In my mind, the fact the juror knows would have a very negative effect and would undermine the proposition of a fair and impartial juror and could affect the integrity of the system. Unfortunately, the ABA opinion takes a different viewpoint.
In any event, sometimes too much information is really too much. Sometimes, the best jurors are those who are least expected. I remember my client insisting in a homicide case that a juror who was a ranking correctional officer be put on the jury. That juror turned out to lead the charge for a not guilty verdict. But a review of that juror’s record or background would never have suggested that. All lawyers have war stories of that nature.
Every lawyer must remember that trials and selecting jurors are really almost an art form. Experience, hunches and old-fashioned observation are really the key to picking a good juror. An overload of information may result on paper showing the juror looks better than one selected without all those pretrial jury investigations, but the bottom line may not result in the lawyer being happy with the result.
In any event, any lawyer who is doing pre-jury investigation should read Formal Opinion 466 and be guided accordingly.
Attorneys may need to report colleagues whose
substance abuse is causing misconduct.
I am helping a fellow lawyer who has an addiction issue. As part of getting the lawyer sober and straightened out to practice, I have discovered acts of misconduct. Do I have a reporting obligation?
Maybe. The reporting requirement for misconduct by a lawyer is found in Rule of Professional Conduct 8.3. A lawyer has a mandatory obligation to report a colleague when the lawyer’s conduct raises a substantial question “as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
The purpose of this rule is obvious. The independence of the legal profession depends on good self-regulation. The legal profession is one of the few professions that is not regulated by a licensing board. The regulation comes from within through the Pennsylvania Supreme Court’s unified supervisory powers under Article V, Section 10 of the Pennsylvania Constitution. This helps to maintain the independence of the legal profession and indirectly the independence of the judiciary. Therefore, there is really an honor system for serious acts of misconduct. The attorney disciplinary system doesn’t have the resources to ferret out all acts of misconduct. There is a need for lawyers to step forward.
Having stated the good purpose for self-reporting, there are also some exceptions. If a lawyer is representing another lawyer who needs help, there would be issues of confidentiality under Rule 1.6. Also, if a lawyer goes to an organization, such as Lawyers Concerned for Lawyers and seeks help, it would appear there is a need for some confidentiality. Otherwise, no attorney with a problem is likely to seek help.
Rule 8.3(c) recognizes the need for some confidentiality under those circumstances:
“This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyer’s assistance program.”
Comment 7 to Rule 8.3 recognizes the importance of this exception, because it notes that lawyers and judges who are seeking assistance may hesitate to do so if they feel they cannot do so with confidentiality.
Therefore, to answer the question, if the lawyer who is helping the impaired or addicted lawyer is doing so as that person’s lawyer or that person has come to the lawyer in confidence to seek help, then the attorney-client privilege would preclude the self-reporting. If the lawyer met the addicted lawyer through Lawyers Concerned for Lawyers, then there is no obligation to report for all the obvious reasons as noted above. But if the lawyer is just a friend and there is no confidentiality involved, then there may be a self-reporting requirement.
Practicing law is never easy, particularly turning in a fellow lawyer. A lawyer who feels it necessary should perhaps give the other lawyer a chance to explain his or her conduct. The best practice would be to write the lawyer to identify the issues and ask if there is some explanation. But the self-reporting requirement is a strong requirement and could result in potentially substantial discipline if ignored. At the same time, exceptions to the self-reporting requirement are equally as important, and all lawyers should be aware of these limitations.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.