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With social media a mainstay of communication, it's increasingly becoming an issue to deal with when it comes to jurors. Most judges deal with the issue through a jury instruction that lets jurors know that they may not share any information about the trial on social media.
But what about lawyers? Can they keep tabs on jurors by monitoring the jurors' social media accounts?
Earlier this year, the American Bar Association answered that question, reports the ABA Journal. Let's take a look at what the ABA decided, and what, if anything is applicable to your practice.
ABA Formal Opinion 466 "Lawyer Reviewing Jurors' Internet Presence"
The question before the ABA Standing Committee on Ethics and Professional Responsibility was whether a lawyer in a case can review jurors' social media profiles before and during trials, and what ethical obligations arise from such review. The committee decided four things: (1) a lawyer may review public information on jurors' social media accounts; (2) a lawyer may not ask for access to information on social media that is not already public; (3) automatic notifications sent by the social media provider are not prohibited ex parte communications; and (4) if a lawyer finds out about juror conduct that is criminal or fraudulent, an ethical obligation to disclose the information arises.
ABA Opinion Not Binding
It should be noted at the outset that this opinion is not binding, as opinions are based on the ABA's Model Rules of Professional Conduct, which can be adopted or modified by each state. California has not adopted the ABA's Model Rules of Professional Conduct so the opinion is not applicable, though can serve as guidance. And, some states may just not agree. New York has already expressed that "the ABA opinion does not appropriately protect jurors and insulate them from outside influences such as contact by counsel," according to the New York Law Journal.
How to Proceed in Your Practice
So where does that leave you and your law firm's practice? First, check to see if your state's bar association makes a statement about, or adopts, ABA Formal Opinion 466. You should also check to see whether your state's bar association has any rule or opinion in place that contradicts the ABA opinion.
Next, err on the side of caution when checking jurors' social media accounts. Be sure to only stick to public information, and don't contact them under any circumstances. Social media can help you monitor jurors, but don't take it too far.