American Bar Association Addresses Lawyers’ Review of Jurors’ Internet Presence
(Formal Opinion 466 April 24, 2014)
The American Bar Association‘s Committee On Ethics And Professional Responsibility issued a formal order clarifying the “blurry” line between permissible use of social media to obtain information regarding juror prejudices and improper and prohibited ex parte communication with jurors under Model Rule 3.5 (b). In this opinion, the Committee advised judges and attorneys to engage in discussions regarding the Court’s expectations about lawyers’ review of a juror’s internet presence. The opinion also stressed that during juror orientation, judges should explain to jurors that their backgrounds are of interest to the parties and that the lawyers might review their electronic social media (“ESM”).
Finally, the Committee noted that the obligation of a lawyer to take action with regard to potentially inappropriate juror internet postings will depend on the lawyer’s assessment of those postings in light of court instructions and the elements of the crime of contempt and other applicable criminal statutes.