Hello everyone and welcome to this Ethics Alert blog which will discuss the recent American Bar Association Formal Opinion 466 which states that a lawyer may review a juror’s or potential juror’s web/internet presence, including postings by the juror or potential juror in advance of and during a trial; however, a lawyer may not communicate with a juror or potential juror directly or indirectly through another. The opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf
According to the opinion, the ABA Ethics Committee was asked “whether a lawyer who represents a client in a matter that will be tried to a jury may review the jurors’ or potential juror’s presence on the Internet leading up to and during trial, and, if so, what ethical obligations the lawyer might have regarding information discovered during the review.” The opinion addresses three levels of lawyer review of juror internet presence
1. passive lawyer review of a juror’s website or ESM that is available without making an access request where the juror is unaware that a website or ESM has been reviewed;
2. active lawyer review where the lawyer requests access to the juror’s ESM; and
3. passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer.
The opinion states that passive review of a juror’s website or ESM which is available without making an access request (and even if the juror is unaware) does not violate Model Rule 3.5(b) (prohibited communications with jurors before, during, and after trial). The opinion’s rationale was that 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 mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b).”
The opinion states that “(t)he fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”
Importantly, the opinion states that a lawyer is prohibited from sending an access request to a juror’s electronic social media, either personally or through another person. An access request is defined as a “communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).”
“In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.”
The opinion concluded: “In sum, a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror’s ESM is communication within this framework. 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 in violation of Rule 3.5(b). If a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.”
Bottom line: As I have previously indicated, advisory opinions are not binding and are for guidance only; however, if a lawyer attempts to follow an opinion, this can be considered to be important mitigation. This ABA Opinion answers questions that trial lawyers confront in this digital age in attempting to gain intelligence about jurors before, during, and after trial.
In a related development, The Florida Bar’s Professional Ethics Committee voted on January 24, 2014, to consider adopting a proposed advisory opinion regarding the issue of lawyers advising clients to “clean up” their social media pages pre-litigation. Stay tuned…
…and let’s be careful out there!
Disclaimer: this Ethics Alert blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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