American Bar Association Gives Members Leeway on Jurors’ Social Presences
Settling what had been a tough ethics question, the ABA recently gave lawyers the go-ahead to research jurors and potential jurors by studying their presence on social media. The formal ethics opinion helps clarify an issue that has cropped up repeatedly in courtrooms nationwide.
In the age of social media, it’s easier than ever to dig into a person’s information—especially when they post it publicly.
That creates opportunity for lawyers in court cases, who suddenly have access to information about jurors at a moment’s notice. It’s led to some vexing legal ethics questions that the American Bar Association (ABA) recently aimed to clear up for its members. More details:
The issue: Some lawyers have taken to using social media to find information on jurors or potential jurors—including their backgrounds, their potential biases, and whether or not they’re violating instructions from the court by speaking about the case in public. As the Associated Press reports, at least one startup offers tracking services for lawyers for this specific purpose. But judges are divided on the ethics of researching jurors on social media, with some allowing the practice and others forbidding it. The ABA Standing Committee on Ethics and Professional Responsibility spent two years studying the question.
Giving the go-ahead: Ultimately, the ethics committee released a formal opinion in April that allowed the practice—albeit with restrictions. “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 a lawyer may not communicate directly or through another with a juror or potential juror,” the committee stated [PDF]. In other words, they can read potential jurors’ tweets or Facebook posts but not follow them or send friend requests. And if an online search turns up evidence of criminal or fraudulent juror misconduct, ABA members are ethically obligated to report it to the court.
Are LinkedIn search notifications “communication”? The committee opinion bucks at least some legal precedent. The New York City Bar Association allows social media searches, but sites that notify people that they’ve being researched—LinkedIn, in particular, does this—cannot be used. “Attorneys may not research jurors if the result of the research is that the juror will receive a communication,” the association wrote in a 2012 formal opinion. Donald Lundberg, a member of the ABA ethics committee, told the AP that the LinkedIn wrinkle was one of the “thornier” issues, but, ultimately, the committee decided to permit lawyers to search the professional networking site.
Beyond the New York City Bar, a handful of state and local bar associations have taken a formal stance on the issue, with Oregon’s largely matching the ABA’s, the AP reported.