ABA Formal Ethics Opinion 466 (Download Formal Opinion 466) addresses the issue of whether a lawyer who represents a client in a matter tried by jury may research a juror's or potential juror's publically available online presence, such as social media, prior to and/or during trial. The opinion also discusses what ethical obligations the lawyer may have regarding information learned during the review.
The opinion's summary follows:
"Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.
A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is 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).
The 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).
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 also raises, but does not take a position on, the issue of whether the standard of care requires trial lawyers to conduct internet research about jurors in connection with jury selection.
Dan Berexa
Nashville, TN
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