BY BRITTANY BROOKS — As the breadth of modern technology and the use of social media grow, the law is forced to grapple with society’s electronic expansion. In the context of professional responsibility, attorneys’ need for direction has become increasingly evident. The public nature of social media and other electronic databases has created new discovery opportunities, which are potentially offensive to ethics and professional responsibility standards. Attorneys’ use of social media and other electronic databases to screen jurors is one example of a questionable practice and an increasingly relevant issue. There is a strong public interest in being able to identify jurors’ prejudices, but there is also a strong interest in preventing ex parte communication between a juror and a party to a case or their attorney. As a response to the increasing relevance of this issue, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“the Committee,”) on April 24, 2012, issued Formal Opinion 466, “Lawyer Reviewing Jurors’ Internet Presence.”
The formal opinion focuses on whether an attorney may review jurors’ or potential jurors’ internet presence and on the ethical obligations that arise as a result of such a privilege. The Committee first distinguished between “websites,” which it defined as “publicly accessible Internet media,” and “electronic social media” (“ESM”), which it defined as any “internet-based social media [site] that readily allow[s] account-owner restrictions on access.” This includes MySpace, Facebook, LinkedIn, and Twitter. Having made that initial differentiation, the Committee then addressed three distinct situations: 1) the review of a juror’s information where the juror is unaware of the review and the information is reviewable without the submission of a request to access, 2) the review of a juror’s information where the attorney requests access in order to view the information, and 3) the review of a juror’s information where the juror becomes aware of the identity of the attorney.
In order to evaluate the ethical propriety of each of these situations, the Committee looked to Model Rule 3.5 of the ABA Model Rules of Professional Conduct, which governs attorneys’ communications with jurors before, during, and after trial. Under Model Rule 3.5, a lawyer may not communicate with a juror before or during a trial except pursuant to a court order. Similarly, where an attorney is prevented by the Model Rules from communicating with a juror, so too is the attorney prevented from directing his agents to engage in such communication on his behalf.
In applying Model Rule 3.5 to each of the aforementioned scenarios, the Committee first determined that where an attorney reviews a juror’s website or ESM without submitting a request to access such information, no violation of Model Rule 3.5 occurs. The Committee’s reasoning was that this is not offensive to Model Rule 3.5 because the “mere act of observing that which is open to the public” is not ex parte contact. In situations where an attorney must submit a request to view otherwise private information, the Committee determined that such a review is prohibited by Model Rule 3.5. The Committee went as far as to liken the submission of an access request to an attorney asking a juror for permission to look inside the juror’s home if the outside of the home was unenlightening.
As to whether the professional rules prevent an attorney from viewing a juror’s website or ESM where the juror is able to see the identity of viewers, Formal Opinion 466 diverges from prior ethics opinions. In 2012, the Association of the Bar of the City of New York Committee on Professional Ethics (ABCNY) issued a formal opinion stating that an improper communication occurs where a juror is notified that an attorney has reviewed his or her information. Conceding the indirect nature of such a communication, ABCNY nonetheless concluded that such a communication was improper because of its potential to influence a juror’s conduct at trial.
Formal Opinion 466 departs from the ABCNY opinion in that the ABA determined that such a situation does not amount to an improper communication between the reviewing attorney and the juror. The Committee contends that the attorney in such a situation has not made any communication, but rather that the ESM has communicated with the juror. Although the Committee has condoned such information review, Model Rule 4.4’s bar from reviewing jurors’ information for the purpose of causing embarrassment or delay still stands.
Moving forward, judges will want to clarify with attorneys their court’s position on the review of jurors’ social media accounts. Furthermore, judges and attorneys will want to make clear the expectation that jurors’ refrain from posting information about a trial on the internet. Attorneys seeking to circumvent the ABA’s determination will need to resist the temptation of creating falsified social media accounts, a practice which has become rampant despite its misrepresentative character. Although social media may help attorneys identify jurors’ biases, it is paramount that attorneys respect the limits on ex parte communication to avoid undermining the fairness of the adjudicative process.
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