While social media can be a useful tool for attorneys, it can also be an ethical minefield. A lawyer may be tempted to search a potential juror's Facebook or Twitter page to assist in the jury selection process. Is such conduct permissible? The American Bar Association ("ABA") recently provided some clarity on what is permitted under the Model Rules of Professional Conduct.
Last week the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 466, addressing the legal ethics of monitoring a juror's social media presence. The ABA concluded that passively viewing public information posted by a juror or potential juror is permitted, even if the social media platform generates a notification to the juror that the attorney has viewed his or her profile. However, an attorney is not permitted to send a juror a request to access a private portion of the juror's social media page. If, through passive viewing of a juror's social media, a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable measures including, if necessary, disclosure to the tribunal.
Model Rule of Professional Conduct 3.5 addresses communications with jurors before, during, and after trial. The Rule provides that:
"A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment."
Model Rule of Professional Conduct 3.5. In its opinion, the ABA distinguished between passive and active review of a juror's social media presence. Passively viewing a public portion of a juror's social media page is permitted under the Model Rules, as the "mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b)." Formal Opinion 466, at 4. The ABA equated viewing a potential juror's public page to driving down the street where a potential juror lives. In both of these situations, the attorney is using publically available information to assist in the attorney's jury selection procedures and has not violated the Model Rules.
On the other hand, sending a request to view a private portion of a juror's social media page "would be akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past." Id. The ABA considers requesting access to a private juror page to be an active review of a juror's social media. Sending an access request is considered "communication" with a juror and is not permitted under Model Rule 3.5(b). Similarly, an attorney cannot ask another party, such as his or her legal assistant, to request access to a juror's private social media page.
When an attorney engages in a passive review of a potential juror's social media profile, the juror may become aware that the attorney has viewed his or her page. Some social media platforms, such as LinkedIn, have a feature that notifies a user that another user has viewed his or her profile. In its opinion, the ABA clarified that an attorney has not violated Model Rule 3.5(b) if a juror receives such a notification. This communication is generated by the social media platform, not the attorney, and is beyond the attorney's control. Under these circumstances, it is the social media website communicating with the juror, not the attorney. Continuing the analogy, the ABA described this as being "akin to a neighbor's recognizing a lawyer's car driving down the juror's street and telling the juror that the lawyer had been seen driving down the street." Id. at 5.
When passively viewing juror social media, an attorney may discover that a juror has made an inappropriate post about a case on the Internet. What is required of an attorney under these circumstances? Model Rule 3.3(b) provides that an attorney must take remedial measures (including, if necessary, reporting the matter to the court) if the attorney discovers criminal or fraudulent conduct by a juror. In its opinion, the ABA suggested that an attorney consider the "materiality of juror Internet communications to the integrity of the trial" when determining whether the juror has acted criminally or fraudulently. Id. at 9. Thus, an innocuous post about jury service, such as the quality of food served at lunch, may be in violation of judicial instructions, but would not amount to criminal contempt.
Though passive review of a juror's social media presence is permitted under the Model Rules, it is not without restriction. Model Rule 4.4(a) prohibits lawyers from engaging in actions "that have no substantial purpose other than to embarrass, delay, or burden a third person . . . ." Thus, lawyers who review juror social media should ensure that their review is purposeful and is not intended to embarrass the juror or delay the proceeding.
ABA Formal Opinion 466 has clarified what is permitted under the Model Rules of Professional Conduct. However, attorneys should carefully consider what is permitted under local ethical rules before engaging in active or passive review of a juror's social media page.