The idea of attorneys digging through social media is certainly not new. Attorneys do it all the time to check to see if Joe Client is actually out skiing when he claimed he was injured.
But what about jurors? Can attorneys dig through their social media accounts?
ABA Ethics Opinion 466
The ABA's Standing Committee on Ethics and Professional Responsibility weighed in on this issue and set forth specific guidelines for attorneys to abide by in its Formal Opinion 466. At the outset, the Committee recognized that there is an important public interest in identifying jurors who are tainted by bias or prejudice. On the other hand, this must be balanced by the desire to protect jurors or potential jurors from being approached by the attorneys or parties in the case.
So where is the line between the diligent investigation of a juror and improper communication? While the opinion is not binding, it does provide useful insight for attorneys wondering what their ethical responsibilities are. The Committee starts the opinion by first recognizing that Model Rule 3.5(b) specifically prohibits an attorney from communicating with a potential juror leading up to trial or any juror during trial unless authorized by law or a court order. From there, the Committee sets forth the following guidelines for appropriate review of a juror's social media:
1. An attorney may review a juror's Internet presence, including any posting before and during trial.
Simply looking at a juror's website or social media does not violate Rule 3.5(b). This information is open to the world and therefore is not an act of communication. The Committee likened it to an attorney driving down the street where a juror lives and observing their neighborhood.
2. An attorney may not communicate directly with a juror or through another juror or potential juror.
This would be a specific violation of Rule 3.5(b), as well as Rule 8.4(a), which prohibits an attorney from doing something through the act of an agent, that which he or she cannot do directly.
3. A lawyer may not, either personally or through another person, send an access request to a juror's social media account.
An access request is prohibited because it is a communication to the juror asking for information that is not available to the public. Here, the Committee compared it to an attorney driving to a juror's house, getting out, and asking the juror to see the inside of his or her house.
4. It is not an improper communication from the attorney when the service provider notifies a juror that the attorney is reviewing the juror's social media page.
The Committee determined that such an alert comes from the provider and not from the attorney, and therefore is not a communication from the attorney. It specifically rejected a contrary determination from the New York County Lawyers' Association who found that this was an impermissible communication because it "might tend to influence the juror's conduct with respect to the trial." In disagreeing with that assessment, the Committee reasoned that such a notification was much like a neighbor seeing the attorney drive down the juror's street, and telling the juror about it.
5. If an attorney discovers a juror's criminal or fraudulent misconduct while reviewing the juror's Internet presence, the attorney must take remedial measures, including informing the court.
The opinion is not clear, however, on an attorney's obligations when he or she discovers improper conduct that is not criminal or fraudulent, such as when a juror violates a court instruction. The Committee did note that such activity might trigger an attorney's duty to report it depending on the circumstances, and cited two cases where violations of court instructions resulted in criminal contempt.
Words of Caution
Under Rule 1.1, Comment 8, Maintaining Competence, a lawyer must keep abreast of the benefits and risks of relevant technology, and social media is no exception. Because privacy features can change frequently, and different jurisdictions have differing approaches to social media, attorneys must understand the terms and conditions of social media sites and whether they send notifications to their subscribers.
Additionally, the Committee noted that under Rule 4.4(a), Respect for the Rights of Third Persons, attorneys are prohibited from engaging in actions that serve no "substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."
The Court Should Set Forth Expectations
The Committee strongly recommended that judges and lawyers discuss the court's expectations around reviewing a juror's Internet presence. This could be set forth in a local rule, standing order, or a case management order, and would govern the conduct of the attorneys in the case, in addition to the applicable Rules of Professional Conduct.
Jurors should also receive instructions on the use of social media and be advised that attorneys may review any publicly available information. If the court discusses expectations, says the Committee, then a juror should not be unduly influenced or concerned that an attorney acted improperly if the juror receives a provider notification that their profile has been viewed.