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ABA Releases Ethics Opinion on Juror Social Media Research

James M. Dedman, IV

In 2014, we, as practicing defense lawyers, find ourselves more than a decade into the age of social media in litigation. These days, without fail, nearly every legal publication and trade journal of note features an article about the value of social media in litigation. Over the years, we’ve learned the benefits of an online investigation of Plaintiffs (and the potential for splendid impeachment material which can arise from such queries), efforts to explore the backgrounds of Plaintiffs’ retained testifying experts , and of course, the general perils of lawyers using social media. We all know that prospective and sitting jurors use – and occasionally abuse – social media. In fact, these days, when preparing for trial, litigators rely upon social media data in determining which prospective jurors to consider or strike from the venire panel. Recently, on April 24, 2014, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, entitled “Lawyer Reviewing Jurors’ Internet Presence.” Generally, this comprehensive nine page ethical opinion offers guidance to litigators using social media to investigate potential and sitting jurors. Interpreting pre-Internet principles and applying them to the ever growing social media landscape, the new ABA opinion, as persuasive authority, offers guidance on these issues. The bottom line: When preparing for trial and investigating jurors, be mindful of the potential ethical issues at hand.

I. Lawyers can “passively” review jurors’ publicly accessible social media data.

First and foremost, yes, litigators can investigate and review publicly available social media profiles of sitting and prospective jurors. The ABA opinion provides that “a lawyer may passively review a juror’s public presence on the Internet.” Like many, jurors have profiles on Twitter, Facebook, and LinkedIn (and countless other sites), and lawyers can input the juror’s name into their search engine of choice and review the results without fear of ethical implications. This conclusion makes perfect sense, as there is no reason to deprive lawyers of the ability to access information that the juror has published online for the world to see. In the opinion, the ABA committee likens this “passive review” of such public information to a lawyer “driving down the street where the prospective juror lives to observe the environs in order to glean publically available information that could inform the lawyer’s jury-selection decisions.”

In reaching this conclusion, the ABA distinguishes between truly publicly accessible social media profiles and those which can only be accessed by a subscriber to the social media service in question. For example, some social media profiles are accessible through search engines or otherwise whether or not the searching party is a member of or logged into his or her own account on that same social media service. For example, anyone – whether a logged in user of Twitter or not – can review the tweets of a Twitter user simply by visiting that user’s Twitter feed at http://www.twitter.com/[USERNAME]. Additionally, LinkedIn permits viewers to see at least some user profile information even if the searching party is not a LinkedIn member. (Type in the name of the target of your search into Google followed by the term “LinkedIn” and you may be able to access portions of the profiles that appear in your search results.). Facebook, though, is more challenging on this front, as many users have made their profiles accessible to fellow users of Facebook but not necessarily the general public itself. Thus, the information that one might glean from a Facebook account may be limited if the searching party is not logged into his or her own Facebook account. Generally, though, the ABA committee suggests that searches employed by one logged into a social media service and those employed by one not logged in are the same. In both cases, the searching party is “passively” reviewing social media profiles and not directly communicating with the target of the inquiry. The target of the search has made the information publicly available, either to the full population of the Internet or to a sizable population of a particular social media service. Thus, the fact that the searching party may be logged into the social media service appears to be of no consequence.

II. Don’t request access to see hidden portions of the juror’s social media profile.

Sometimes, the only way to unlock a social media user’s private profile is to send the user a friend request, or as the ABA committee refers to them, an “access request.” As users have become more sophisticated in the realm of social media privacy settings, many users disclose only part of their social media profile to the Internet as a whole or to fellow subscribers of that service. For example, a Facebook user may share some limited information with fellow subscribers but permit only “friends” (or others to whom they have granted access) to see the majority of the information, photographs, and posts on that user’s profile. The ABA committee concludes that a lawyer may not send a direct access request to the juror to unlock this information via a friend or access request. This is the correct conclusion. As the ABA committee notes, such a request, in and of itself, would constitute a direct communication with the juror and thus be a prohibited ex parte communication. The act of sending an access request would be like “driving down the juror’s street, stopping the car, getting out and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.”

Of course, the ABA opinion does not address all of the strategies that have been employed over the years to discover social media information. In the old days, a searching party could “unlock” a user’s Facebook profile by connecting not with the target of the search but a friend of that person. Time was, certain Facebook privacy settings would permit a user to share photographs and other postings with “Friends of Friends” (which, according to one 2012 study, allowed as many as 150,000 other users to see the information). When this setting was applied, a searching party could unlock the target’s profile by friending a friend of the target without ex parte implications or, presumably, the need to disclose the purpose of the friend request. (Note: Ethical bodies are now requiring candor in employment social media access requests. At least one ethical body has determined that a searching party must disclose the true purpose of a friend request to a fact witness when the searching party sends such a request to uncover potential impeachment material.). Interestingly, the friends of a search target’s friends could include anyone, possibly including pre-existing friends of the party conducting the search. Further, in light of the number of corporate Facebook accounts which seek to “friend” customers or supporters, the searching party could “friend” such a corporate account of a restaurant or business and thereby potentially unlock the target’s profile information if the target was also a friend of that business. Would this type of conduct be prohibited under the ABA’s opinion when applied to jurors? Would the searching party need to disclose to the corporate user the true purpose of that friend request? These may be questions for another day, but in the absence of authority permitting such a tactic, it might be best to refrain from it (and be safe instead of sorry).

III. Be careful, as the social media service may alert the juror that you have passively reviewed his or her profile.

Somewhat surprisingly, the ABA committee also addressed a lawyer’s ethical duties when using a social media service which alerts the target whenever another user views his or her profile. Wisely, the authors of opinion do not specify which social media services offer this feature (and any attempt to list individual services would likely be rendered obsolete in light of the ever changing social media privacy landscape). That said, the ABA committee may be referring to LinkedIn, whose subscribers can receive such notifications. In the case of a prospective or sitting juror, that notification might come during the trial itself (thereby elevating concerns about the contact). Although the ABA opinion cites preexisting New York ethical opinions finding such an alert to be an impermissible contact (because it would not have happened but for the searching party’s inquiry), the authors of the ABA opinion disagreed, concluding that any such alert was generated by the social media service. In so doing, the ABA committee likened the situation to “a neighbor’s recognizing a lawyer’s car driving down the juror’s street and tell the juror that the lawyer had been seen driving down the street.”

IV. A few miscellaneous takeaways from the ethical opinion.

An entire section of the ethical opinion deals with juror misconduct and a lawyer’s potential duties in response to discovery of such things. Accordingly, when conducting juror social media research, be mindful of your obligation to report potential misconduct by the juror. On this point, the ABA committee advises that “[i]f 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.” As always, be certain to check your own state’s ethical guidelines on these specific issues, as your state may have reached different conclusions than the ABA committee (such as the differing opinion of the New York ethical bodies on the aforementioned automatic, subscriber notification features). Finally, remember too that if your firm employees a third party or contractor to conduct this type of social media research, then they too are bound by these ethical obligations and must comply with them.

Published by Defense Research Institute
Trials and Tribulations Newsletter
Volume 20, Issue 2
July 3, 2014