ABA Weighs In on Attorneys Viewing Juror Social Media
May 7, 2014
According to a recent ABA Ethics Opinion, how far lawyers can go with juror social media depends on the juror’s privacy settings. Lawyers are free to mine the social media accounts of jurors but they may not request access to an account that is blocked by privacy settings.
Summed up nicely by the Wall Street Journal, the Model Rules “give lawyers a green light to scour a juror’s Twitter feed, Facebook account or any other site where they posted comments, photos or videos about themselves for anyone to see. Everything that’s public online is fair game. And the same goes for potential jurors during jury selection.”
But lawyers are advised against sending an “access request” to a juror’s social media – i.e., Facebook “friending” a juror, sending a Twitter follower or LinkedIn request to a juror who restricts access to their accounts. The ABA Opinion advises that this is an ex parte communication prohibited by ABA Model Rule 3.5(b) (restricting contact between lawyers and jurors not authorized by the court).
The Opinion analogizes: “This 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.”
While juror misconduct via social media is not the subject of the Opinion, the ABA also advises lawyers what to do if they stumble across content about a juror that they suspect may be evidence of improper behavior. Model Rule 3.3 obligates attorneys to take reasonable remedial measures (including disclosure to the tribunal) if the juror or a potential juror appears to be up to something that looks “criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.” But if lawyers encounter something more innocuous, like a juror tweeting about “the quality of food served at lunch”, they don’t have to tell anyone, even if the juror appears to be disobeying instructions about what she can say outside the courtroom.
So before you troll potential jurors’ posts and feeds, make sure to read your state’s professional rules and this ABA Opinion.