Can an Attorney Research Potential Jurors Through Their Social Media Posts?

Legal Ethics in Jury Selection in the Age of Facebook, Google+, Linkedin, and Other Social Networks:

The electronic world is very much akin to the Wild West, especially to attorneys and their clients. Litigants and their attorneys can get in trouble if either over-steps the ethical guidelines. In the world of the Internet, those guidelines sometimes do not exist until a party has shocked the conscious of the legal community. As a result, the rules we need to follow are often reactionary versus prescriptive.

As for interactions with potential jurors, the rule outlines by the American Bar Association in Formal Rule 466 (issued April 2014) is not too far off from where it always had been. Traditionally, lawyers have been instructed to stay away from and not contact anyone on the jury pool.

What confuses people is that the electronic virtual world has similar rules. According to the advisory opinion, an attorney may review a juror's online presence, such as multiple Internet destinations such as facebook, Google+, and Linkedin. However, just like in the real world, attorneys should not contact potential jurors.

What Does it Mean to "Communicate"?

According to the ABA, “a lawyer may not, either personally or through another, send an access request to a juror's electronic social media.” As a result, since most information on social media is not accessible unless a “friend request” is made, anything that requires that kind of direct contact is off limits. The ban includes contact requests made through third parties such as investigators or the client him or herself.

A “Plainview Doctrine” Applies To Attorney Interactions With Jurors:

Essentially, ABA Formal Rule 466 can be described as a “plain view” like doctrine similar to how the police are allowed to make an arrest without a warrant when contraband is seen in plain view.

An attorney can view and utilize that which he or she can see as a member of the public. An attorney cannot take steps (or through third parties) that seek to view privately stored information or information that requires a direct contact with jurors.

Caveats:

Advisory Rule 466 does muddy the water as well. The lawyer is required to advise the court of potential juror misconduct (an obligation that has always existed). However, in the context of the new rule, it is completely unclear as to how far the lawyer is allowed to go when at the same time the lawyer is not allowed to view information that would require direct contact (such as a friend request).

For example, if someone tells an attorney that a juror is discussing a case through social media, that would violate the juror's oath. It would disqualify the juror. However, Rule 466 does not allow the lawyer to seek the information on the juror's closed social network.

So, we are still very much in the Wild West here. The ABA rules have not kept pace with technology. As attorneys, we have to be mindful that our actions may be judged after the fact. As a result, attempts to push the envelope where there is no rule of conduct could still lead to being sanctioned.

Advice:

A good rule of thumb, in situations where there is no formal rule of conduct is to translate the situation into a situation before the Internet. If you can think of a similar, non-electronic, situation, apply the facts and the rules to that hypothetical. That is the best way to protect yourself and your client's litigation.