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James D. Crosby, Attorney at Law. Complex and General Business Litigation and Trial Representation. San Diego, California. O: (619) 450-4149 C: (858) 705-0083 Email: crosby@crosbyattorney.com

Can a Lawyer Review a Juror’s Facebook, Linkedin or Twitter Page During Trial? ABA says Yes!

James D. Crosby, Attorney at Law - Complex and General Business Litigation and Trial Representation - San Diego, California

On April 24, 2014, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 – Lawyer Reviewing Juror’s Internet Presence. In the opinion, the Committee considered the following question:

Whether a lawyer who represents a client in a matter that will be tried to a jury may review the jurors’ or potential jurors’ presence on the Internet leading up to and during trial, and , if so, what ethical obligations the lawyer might have regarding information discovered during the review.”

The Committee formally opined that:

Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but may not communicate directly or through another with a juror or potential juror.  

A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).

In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.

More simply stated, using Facebook as an example, a lawyer can look at the juror’s Facebook page before and during trial, but cannot seek to “friend” the juror. The former would not be an improper communication with a juror, the latter would be. Further, if the juror’s Facebook page evidences juror or potential juror misconduct that is criminal or fraudulent, the lawyer must disclose same to the court.

In an interesting opinion, the Committee noted the “strong public interest in identifying jurors who might be tainted by improper bias or prejudice” and the equally strong public policy “in preventing jurors from being approached ex parte by the parties to the case”. The Committee stated that in today’s “Internet-saturated” world, the line between properly investigating jurors and improperly communicating with them is “increasingly blurred.” With the opinion, the Committee sought to clarify where that line is.

In approving the “passive review” of a juror’s social media presence or websites, the Committee stated that “the mere act of observing that which is open to the public” is not an improper communication. By analogy, the Committee noted that “a lawyer … would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.”

But, the Committee opined that sending an access request ( e.g., a Facebook “friend” request) to a juror crosses the line  – it is an improper communication because it asks the juror for information that the juror has not made public.

On the issue of the obligation of a lawyer who sees evidence of juror misconduct on a juror’s social media site, the Committee drew a bright line where the juror’s misconduct is fraudulent or criminal – the lawyer must act and report the misconduct to the court. But, where the juror conduct evidenced on the social media site or website violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, the lawyer’s obligation is less clear and not addressed by ABA Rule. The court noted:

“While any Internet postings about the case by a juror during trial may violate court instructions, the obligation of a lawyer to take action will depend on the lawyer’s assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes. For example, innocuous postings about jury service, such as the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt. A lawyer’s affirmative duty to act is triggered only when the juror’s known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.”

So, according to the ABA, trial lawyers can review the Facebook, Linkedin, Twitter, Instagram, etc., pages of jurors and potential jurors in advance of, and during, trial without violating ABA ethical rules.

And well they should! Social media sites can provide a wealth of information that can be very useful in voir dire, jury selection, opening statement and closing argument. Social media postings can provide insights into a juror’s politics, prejudices and predilections, insights which can be extraordinarily valuable at trial.

In fact, in the future and perhaps even now, not conducting Internet research into jurors could be risky. In an opinion footnote, the Committee noted as follows: “While this Committee 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.”

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