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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”).

The opinion found an attorney’s “passive” review of a juror’s ESM that is available without making an access request, and of which the juror is unaware, is not a violation of the Model Rule 3.5 (b) prohibition against ex parte communication. The Committee compared this action to a lawyer driving down the juror’s street to look at his environment and obtain publicly available information that could impact the lawyer’s jury selection decisions. However, an attorney may not personally, or through another, send a juror a request to access their social media. An access request, the Committee reasoned, is communication to the juror for information that is not publicly available and would be the ex parte communication prohibited by Model Rule 3.5(b). The Committee made the analogy to stopping on the juror’s street and asking the juror for permission to look inside their house. The Committee further noted that some shared ESM networks send notifications when a subscriber’s ESM is viewed and this notification is not communication with the juror as the ESM service is communicating with the juror based on a technical feature of the ESM, not the attorney. The Committee recommends that lawyers who decide to review jurors’ social media be aware pf automatic, subscriber-notification features described in the terms of use for these sites.

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.

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