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Thursday, June 26, 2014

ABA Ethics Committee: Lawyers May Look at Jurors' Social Media Pages

The Washington Post reports:

Lawyers are now allowed to look at the “Internet presence” of a juror or a potential juror, according to the American Bar Association’s committee on ethics and responsibility. Your likes and your faves are now up for review when you are being considered for jury duty or even when you’re already part of a jury. The ABA committee announced its decision in a formal opinion issued in April, noting that in the modern world, “the line … between properly investigating jurors and improperly communicating with them” is blurred. The same is true of what separates our selves from our avatars.
. . .

The determination: Lawyers cannot send a Facebook friend request or, say, ask to follow a private Twitter or Instagram account. Lawyers canpassively review a juror’s social media postings, with idly checking a person’s public Twitter page no different than driving down a person’s street to see if anything jumps out, the ABA says. But actively reviewing a person’s social media life — say, sending a friend request, which is compared by the ABA to driving to a person’s home, knocking on the door and asking for permission to snoop around — that’s a no-no. (Judges, meanwhile, are advised to tell jurors that their backgrounds — Internet presence and all — may be investigated by the lawyers in the case.)
The full text of that formal opinion, which was released in April 2014, is available here.

This seems to be a sensible decision, although I am surprised that it has taken so long for an opinion like this to be released. Attorneys would do well to know the inclinations of potential jurors, and opinions that jurors are willing to share on publicly accessible Facebook or Twitter pages should be fair game for attorneys who want to know which of the jurors are more likely to be impartial.

While this decision makes learning about jurors less of an ethical gray area for lawyers, the decision notes that with great power, comes great responsibility. Lawyers who look over the social media pages of jurors may have an obligation to report juror misconduct to the court. From the opinion:

By passively viewing juror Internet presence, a lawyer may become aware of a juror’s conduct that is criminal or fraudulent, in which case, Model Rule 3.3(b) requires the lawyer to take remedial measures including, if necessary, reporting the matter to the court. But the lawyer may also become aware of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, and Rule 3.3(b) does not prescribe what the lawyer must do in that situation. While considerations of questions of law are outside the scope of the Committee’s authority, applicable law might treat such juror activity as conduct that triggers a lawyer’s duty to take remedial action including, if necessary, reporting the juror’s conduct to the court under current Model Rule 3.3(b).
It is good to know that lawyers have the ABA's blessing to look over jurors' publicly available social media information. Hopefully this information does not get out to too many potential jurors, however, since those who are less inclined towards jury duty may begin publishing "strategically-worded" posts in order to prompt lawyers to challenge them.

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