What are the ethical boundaries of an attorney’s internet research of jurors? Before the ubiquity of the internet, an attorney obviously couldn’t walk up to a potential juror in a restaurant and strike up a conversation. But the extra-physical nature of the internet presents a different set of issues, specifically with the level of contact made to potential jurors leading up to a trial and to jurors during a trial.
With respect to researching jurors or even potential jurors, the ABA Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 466, available here. The ABA instructed that the lawyer cannot send an “access request” to the person’s social media account. An access request is any communication to the juror that requests access to information the juror has not made public. This type of communication is prohibited under Model Rule 3.5(b) regarding ex parte contacts with judges, jurors, prospective jurors, and other officials.
For Facebook, the attorney can search for the person and view their public profile, but cannot send a “friend request.” If the person has an account on Twitter or Instagram, their privacy settings will generally be all or nothing, meaning you’ll be able to see everything they post – every tweet and every photo – or hardly anything at all, perhaps just a small profile picture. If the person’s account is not public, attempting to “follow” the person on Twitter or Instagram is a prohibited “access request.”
The professional networking site LinkedIn presents a unique challenge. LinkedIn users can view another user’s publicly available information without making an affirmative contact like a friend or follow request. But LinkedIn notifies the user that someone has been looking at their profile and often identifies the person. In other words, if you read this post and look me up on LinkedIn, but don’t do anything else (you don’t try to “connect” with me on LinkedIn), I’ll still know you looked at my LinkedIn profile. ABA Formal Opinion 466 suggests that this is allowed because it is LinkedIn, and not the attorney, that is making the contact to the person. There is, however, a setting in LinkedIn that allows the user to anonymize herself when viewing others’ profiles. If you are going to research jurors on LinkedIn, this is a best practice. Although there may be no ethical violation in LinkedIn notifying a juror that you have looked at his or her profile, it may cause unwanted feelings in that juror knowing the lawyer for one of the parties has been researching them on the internet.
While local practice varies widely, and some courts even prohibit lawyers from researching jurors’ social media accounts, an attorney should consider his obligations under ABA Model Rule 1.1 (Competence), comment 8: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .”
Finally, and what we hope is a reminder, if the lawyer is prohibited from doing something, so is the lawyer’s paralegal or secretary. Model Rule 8.4(a) prohibits the lawyer from doing through another what she cannot do herself.