The American Bar Association (ABA) has ruled that lawyers are allowed to search a juror’s or potential juror’s public Internet presence, which can include postings by the juror in advance of and during a trial. However, sending “friend” requests, “following” or other such access requests are considered an ethics violation, the ABA said.
“In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, 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,” the ABA’s formal opinion stated.
One of the more perplexing issues is that jurors can receive social media notifications that they have been searched, such as on LinkedIn. While the ABA deemed this to be ethically sound, its opinion cited a dissenting recent ruling on the matter. A decision by the New York City Bar Association in 2010 said that any notice sent to a potential juror about a search amounts to an unauthorized communication.
“The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer,” the ABA’s opinion said.
The ruling also addresses jurors Internet postings about the case, which calls for attorneys to assess them based on 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,” the ruling stated.
On the flipside, a related issue surrounding social media rights is what is considered allowable for lawyers, judges and courthouse employees to post on the Internet.
Attorneys who post on sites like Facebook, Twitter and LinkedIn also have to worry about violating attorney-client confidentiality, disciplinary action, losing jobs, or engaging in the unauthorized or inadvertent practice of law, InsideCounsel’s Ed Silverstein recently reported. Courts have made rules for jurors, lawyers and judges when it comes to online posting during jury trials. Mistrials are definitely a risk if violations occur. As the pervasiveness of social media continues, more guidelines are expected to come in the near future.