Last week, the American Bar Association’s Committee on Ethics and Professional Responsibility (“ABA”) gave lawyers the go-ahead to scour jurors’ or potential jurors’ publicly available social-media accounts, blogs, and websites such as Facebook, LinkedIn LNKD +0.16% and Twitter. Although lawyers might be expected to breathe a sigh of relief that they can now engage in conduct considered acceptable and expected for most other professions without the threat of professional discipline, the opinion actually adds to the confusion about how existing ethical rules are applied in the ever evolving world of social media. Indeed, just two and three years ago respectively, two different New York bar associations concluded that the conduct the ABA just approved could be considered a violation of New York’s Rules of Professional Conduct. Thus, whether and how an attorney can research his or her jury pool may depend entirely on where that jury is sitting.
In Formal Opinion 466, entitled “Lawyer Reviewing Jurors’ Internet Presence,” the ABA addresses the question of whether lawyers may search the Internet for information concerning jurors or potential jurors, and what ethical obligations lawyers have regarding information discovered during the review. In short, the ABA permits lawyers to review potential or current jurors’ social media pages and Internet postings that are publicly available, but forbids lawyers from personally, or through others, requesting access to information that a juror has not made public. Reviewing a website that is available without making a request for access does not violate ethics rules prohibiting lawyers from communicating with jurors during a trial. A “passive” review, according to the ABA, is not improper contact because the lawyer merely is observing that which is open to the public. An access request, however, is unethical because it is a communication to a juror asking the juror for non-public information. The ABA’s conclusions with respect to these issues are consistent with those of other bar associations.
(Photo credit: Jason A. Howie)
The ABA diverges, however, on the issue of whether lawyers may ethically review social media websites that automatically notify a juror-subscriber that his or her profile is being viewed and identify the viewer. In a 2011 ethics opinion, the New York County Lawyers’ Association Committee on Professional Ethics (“NYCLA”) warned that an “impermissible communication” could occur if a juror becomes aware that a lawyer has viewed the juror’s social media profile because it “might tend to influence the juror’s conduct with respect to the trial.” In a 2012 ethics opinion, the Association of the Bar of the City of New York Committee on Professional Ethics (“NYC Bar”) warned that a “communication is the process of bringing an idea, information or knowledge to another’s perception – including the fact that they have been researched.” The NYC Bar, therefore, concluded that an automated notification to a juror that a lawyer has reviewed the juror’s social media is a “communication” and that “research using services that may, even unbeknownst to the attorney, generate a message or allow a person to determine that their website has been visited may pose an ethical risk even if the attorney did not intend or know that such a ‘communication’ would be generated by the website.”
The ABA opinion considers these concerns and finds them unpersuasive. It states: “The lawyer is not communicating with the juror; the [electronic social media] service is communicating with the juror based on a technical feature of the [electronic social media service]. This is akin to a neighbor 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.” To address the concern raised by NYCLA that a juror’s conduct could be influenced by the knowledge that a lawyer reviewed his or her social media, the ABA suggests that judges explain the practice to jurors during orientation. It also advises lawyers to stay abreast of technology and be aware of automatic, subscriber-notification features and instructs lawyers that their review of jurors’ social media should be “purposeful and not crafted to embarrass, or burden the juror or the proceeding.”
The ABA opinion, consistent with the New York opinions, further warns that a lawyer’s discovery of a criminal or fraudulent conduct by a juror may trigger the lawyer’s obligation to take remedial measures, including reporting to the court. And, it reminds lawyers to consider their reporting obligations even when juror misconduct is not criminal or fraudulent.
As the ABA recognized, the Internet blurs the line between properly investigating jurors and improperly communicating with them. For lawyers, this means that the best practice is to stay abreast of ethical guidance and technology. For everyone else, it means that the next time you receive a jury summons, consider adjusting your privacy settings before reporting to court.