eDiscovery Daily Blog

• April 25, 2014

 

Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.  So says a new formal opinion from the American Bar Association (ABA) Standing Committee on Ethics and Professionalism.

Formal Opinion 466 is a nine page PDF document which is designed to cover the responsibilities for lawyers who are reviewing jurors’ Internet presence.  For the purposes of this opinion, Internet-based social media sites that readily allow account-owner restrictions on access are referred to as “electronic social media” or “ESM” sites – of which the opinion gives current examples like Facebook, MySpace, LinkedIn, and Twitter. 

Under Model Rule 3.5(b) of the ABA Model Rules of Professional Conduct, 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.  With that in mind, the opinion addresses three levels of lawyer review of juror Internet presence:

1. passive lawyer review of a juror’s website or ESM that is available without making an access request where the juror is unaware that a website or ESM has been reviewed;

2. active lawyer review where the lawyer requests access to the juror’s ESM; and

3. passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer.

To illustrate whether each activity violates Rule 3.5 (b), the opinion analogizes each of the activities to real world contact, as follows:

1. In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.  So, passive review of a juror’s website or ESM, that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b).

2. This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past and it would be the type of ex parte communication prohibited by Model Rule 3.5(b).

3. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.  A lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM.

Also, under Model Rule 3.3(b), if a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.  However, the opinion hedged on a lawyer’s duty to notify the court when the conduct is merely “improper”, but stops short of being criminal or fraudulent.

So, what do you think? Do any of the parameters of this opinion surprise you? Please share any comments you might have or if you’d like to know more about a particular topic.

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