ABA Journal

Lawyers may look at what jurors post online, but only if it’s available to the public


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Illustration by Tim Marrs

Courts have been dealing for a while now with jurors discussing the trials they’re deciding through postings on websites accessible to the public and electronic social media that allow restrictions on access, such as Facebook, Myspace, LinkedIn and Twitter. Trial judges generally try to restrict such activities with admonitions in their instructions to the jury.

But as more and more lawyers are looking to websites and social media to learn more about both sitting jurors and prospective jurors, they, too, need some guidance on just how far they may go.

The ABA Standing Committee on Ethics and Professional Responsibility offered its advice in Formal Opinion 466 (PDF), issued April 24. Formal opinions are based on the ABA Model Rules of Professional Conduct, which provide the substantive basis for binding rules governing lawyers in every state and the District of Columbia, although the rules in California follow a different format.

The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may review a juror’s or potential juror’s various postings on websites and social media. But the lawyer should not send jurors or prospective jurors a request for access, either directly or indirectly, to their social media accounts because doing so would amount to a violation of the prohi-bition in Model Rule 3.5(b) against ex parte communications with jurors that are not authorized by law or court order.

In a footnote, the ethics committee states that it “does not take a position on whether the standard of care for competent lawyer performance requires using Internet research to locate information about jurors that is relevant to the jury selection process. We are also mindful of the recent addition of Comment [8] to Model Rule 1.1. This comment explains that a lawyer ‘should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’ “

The various types of social media are rapidly moving and morphing targets, which means that today’s guidelines may be outdated by tomorrow. Ethics opinions traditionally have been cut in stone, but they now might be etched in warm wax.

“Technology changes so fast it’s always now a game of catch-up,” says Donald R. Lundberg, a partner and deputy general counsel at Barnes & Thornburg in Indianapolis who is a member of the ethics committee. “We tried to keep it generic enough to be useful for a while.”

Click here to read the rest of “What You See Is What You Get” from the July issue of the ABA Journal.

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