ABA Says that Attorneys May Investigate Jurors’ Social Media Presence, Even if Automatic Notifications are Generated
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently weighed in on the ethical parameters of attorneys’ investigation of jurors’ social media presence. In ABA Formal Opinion 466, the Committee concluded that an attorney may review a juror’s social media presence; an attorney may undertake that review even if the social media website issues a notice to the juror that the attorney viewed his social media profile; and an attorney may not request private access to a juror’s social media profile.
Attorney review of jurors’ profiles is a hot-button topic in light of ABA Model Rule 3.5, which prohibits ex parte communications with a juror “unless authorized to do so by law or court order.” And importantly, ABA Model Rule 8.4(a) prohibits a lawyer from causing another to take actions that a lawyer cannot.
With these Model Rules in mind, the Committee reasoned that “passive review” of jurors’ publicly-available social media is permissible because a lawyer or his agent may, for example, “drive down the street where the prospective lawyer lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.” (Indeed, this blog has previously suggested the consideration of “non-cyber” situations as a good “rule of thumb” for evaluating ethical boundaries in the evolving area of social media.) The Committee concluded that such non-invasive investigation would not run afoul of Model Rule 3.5.
In contrast, the Committee concluded that sending an “access request,” i.e., a Friend Request or LinkedIn invitation, would be an obvious ex parte communication with a juror in violation of Model Rule 3.5. In that instance, the Committee explained that the attorney would cross the line because such conduct “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.”
Next, the Committee addressed whether a social media site’s automatic notification of the persons who recently viewed a profile to the site user constituted an impermissible ex parte communication. The Committee noted that two ethics opinions from New York recently considered this issue. In Formal Opinion 2012-2, the Association of the Bar of the City of New York Committee on Professional Ethics concluded that such a network-generated notice would violate the ethics rules “if the attorney was aware that her actions” would send the notice, and the committee took “no position on whether an inadvertent communication would be a violation of the Rules.” In Formal Opinion 743, the New York County Lawyers’ Association Committee on Professional Ethics agreed with Formal Opinion 2012-2, observing that such a communication may be an impermissible communication.
The Committee parted ways with the two New York ethics panels, concluding that the network-generated notice was not an impermissible contact with a juror because the social media service is doing the communicating, not the lawyer. Once again, the Committee likened the conduct to a non-cyber world example: “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.” The Committee did, however, suggest that attorneys make themselves aware of such automatic notifications by reviewing social media sites’ user terms and conditions, including privacy settings; the Committee also reminded lawyers that Model Rule 4.4(a) prohibits lawyers from taking actions that embarrass, delay, or burden a third person, so attorneys reviewing juror social media should not do so for such impermissible purposes.
The Committee further recognized that permissible attorney review of jurors’ social media may lead to the discovery of juror misconduct. While acknowledging that this topic was outside the scope of its Opinion, the Committee reminded lawyers that they may have an obligation to report juror misconduct to the tribunal. The Committee explained that reporting may be limited to instances of criminal or fraudulent conduct, but that attorneys should familiarize themselves with applicable reporting laws in their jurisdiction.
In light of different ethics panels’ interpretation of the applicable rules, and the apparent uncertainty of reporting juror misconduct, it is understandable why the Committee “strongly encourage[d]” attorneys and judges to discuss the court’s rules regarding attorney review of a juror’s social media presence, including the suggestion that judges should issue formal instructions to attorneys as to the court’s expectations.