Should you stalk jurors on social media, for juror selection research?
Short answer? Yes.
Last year, we asked: does an ignorance of social media amount to malpractice? It may seem like a silly question, but the sheer amount of information available on social media (for researching opposing counsel, clients, witnesses, jurors, and any other parties involved in a case) make it an invaluable resource that you'd be foolish to ignore, especially for voir dire.
Plus, Comment 8 to Model Rule 1.1 (Competence) states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology [...].
It's not a clear mandate to hop on Facebook and Twitter, but it's certainly close. A recent ABA ethics opinion, discussing research on jurors via social media, cites this rule as guidance, while noting that it was not taking a stance on whether social media research is part of the standard for competency.
Instead, the opinion talked about how much stalking is too much.
The ethics opinion divides social media scenarios into three categories, the first of which is casual browsing of publicly available information. The opinion compares this to driving by a juror's house, which is perfectly permissible. So long as the information is publicly available on the Internet, you can, and probably should, check out their profiles.
Entering the House
The next category is requests to access private data. This is the "friending" stage, and constitutes impermissible ex parte contact with a juror. The opinion clearly notes that such requests are improper and reminds attorneys that they can't flout the ethics rules by having a third-party send the request either.
The real life comparison from the opinion was asking a juror to come inside and inspect her house.
Some social networks (LinkedIn) notify users about visitors to their page. The opinion notes that this is close to the line of ex parte communication, and discusses two New York ethics opinion that held that this does cross the line. However, the ABA opinion disagrees, noting that the communication does not come from the lawyer, but instead, it comes from the service.
The offline comparison is a neighbor spotting a lawyer's car driving by and telling the juror.
The opinion also briefly touches on what a lawyer should do when social media research turns up juror misconduct. Under Model Rule 3.3(b), the lawyer is only required to speak up when the conduct is criminal or fraudulent.
What about discretionary reporting? The opinion advises lawyers to use their best judgment. While any social media postings about the case may violate the court's instructions, an innocuous post about lunch may not warrant initiating contempt proceedings. But for more severe violations, "reasonable remedial measures including, if necessary, disclosure to the tribunal" may be necessary.