Can a lawyer look up jurors and prospective jurors on social media during a trial?

Plain-English summary

The opinion frames three levels of review: passive review of a juror's public websites and electronic social media (ESM) of which the juror is unaware; active review in which the lawyer requests access to the juror's ESM; and passive review where the juror becomes aware of the viewer's identity through an ESM feature. Applying Model Rule 3.5(b), which bars ex parte communication with a juror during a proceeding, the opinion concludes that passive review of publicly available material is not a "communication." It analogizes this to "driving down the street where the prospective juror lives to observe the environs," noting that "the mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b)."

By contrast, the opinion concludes that sending an access request is itself a prohibited communication: "an access request is an active review of the juror's electronic social media by the lawyer and is a communication to a juror asking the juror for information that the juror has not made public." Under Rule 8.4(a), "a lawyer may not do through the acts of another what the lawyer is prohibited from doing directly," so the lawyer cannot use an agent either. The opinion parts ways with two New York opinions and concludes that an ESM network's automated notice to the juror that the lawyer viewed the profile is not a violation, because "the lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM."

The opinion adds cautions under Rule 1.1 Comment [8] (staying current with the technology and its notification features) and Rule 4.4(a) (review must not be designed to embarrass, delay, or burden). On discovering misconduct, it explains that Rule 3.3(b) compels remedial measures, including disclosure if necessary, but only when "the juror's known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions." It notes that the Ethics 2000 drafters intended to carry over a broader duty to report any improper juror conduct, but that intent was never enacted, so the Committee's guidance follows the narrower text of Rule 3.3(b). The opinion strongly encourages judges and lawyers to discuss the court's expectations and to advise jurors during orientation that their backgrounds may be investigated.

In practice

Under this opinion, a lawyer may look at jurors' and prospective jurors' public online profiles, but should not send friend requests or other access requests, and should not have an agent do so. The opinion holds that an automated network notice to a viewed juror is the network's communication, not the lawyer's, and does not violate Rule 3.5(b). It holds that a lawyer who learns of criminal or fraudulent juror conduct related to the proceeding must take reasonable remedial measures under Rule 3.3(b), including disclosure to the tribunal if necessary, and cautions that review must comply with Rule 4.4(a) and reflect current knowledge of the technology under Rule 1.1.

Common questions

Q: Can I review a juror's public Facebook or other public profile without telling them?

A: Per the opinion, yes; passive review of publicly available material the juror is unaware of does not violate Rule 3.5(b).

Q: Can I send a friend request or other access request to a juror?

A: No. The opinion concludes an access request is itself a prohibited ex parte communication under Rule 3.5(b), and the lawyer may not do it through an agent either.

Q: What if the social media network tells the juror that I viewed their profile?

A: The opinion says that notice is a communication generated by the network, not by the lawyer, so it does not violate Rule 3.5(b).

Q: What must I do if I find that a juror is engaging in misconduct?

A: The opinion holds that when the juror's conduct is criminal or fraudulent and related to the proceeding, the lawyer must take reasonable remedial measures under Rule 3.3(b), including disclosure to the tribunal if necessary.

Background and rules framework

The opinion interprets Model Rule 3.5(b) (no ex parte communication with jurors during a proceeding) and Model Rule 8.4(a) (acting through another). It applies Model Rule 4.4(a) (no actions whose only substantial purpose is to embarrass, delay, or burden), Model Rule 1.1 Comment [8] (technology competence), and Model Rule 3.3(b) (remedial measures on knowledge of criminal or fraudulent conduct).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.5, including 3.5(b)
• ABA Model Rule 8.4(a); 4.4(a)
• ABA Model Rule 1.1 (competence, Comment [8]); 3.3(b)

Other opinions cited:

• ABCNY Formal Op. 2012-2; NYCLA Formal Op. 743 (2011): juror social-media research
• Oregon Formal Ops. 2013-189 and 2005-164; NY State Bar Op. 843 (2010)

Cases:

• Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010)
• United States v. Juror Number One, 866 F. Supp. 2d 442 (E.D. Pa. 2011)

See also

• ABA Formal Op. 496: Responding to Online Criticism
• ABA Formal Op. 480: Confidentiality in Lawyer Blogging
• ABA Formal Op. 508: The Ethics of Witness Preparation

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: formal_opinion_466_final_04_23_14.pdf