Formal Opinion 466 Lawyer Reviewing Jurors’ Internet Presence
The AB’s Standing Committee on Ethics and Professional Responsibility was asked to form an opinion on whether a lawyer may review a juror’s electronic social media. The Committee determined that there are three levels of lawyer review of a juror’s internet presence:
- passive lawyer review of a juror’s website or electronic social media (ESM) that is available without making an access request where the juror is unaware that a website or ESM has been reviewed;
- active lawyer review where the lawyer requests access to the juror’s ESM; and
- passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer
Some ESM networks allow a juror subscriber to determine the identity of the viewer. This Committee concluded that a lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.
The Committee suggested that lawyers be aware of these automatic, subscriber-notification features. By accepting the terms of use, the subscriber-notification feature is not secret. Model Rule 1.1 comment 8 says it is important for a lawyer to be current with technology. While many people simply click their agreement to the terms and condition for use of an ESM network, a lawyer who uses an ESM network in his practice should review the terms and conditions, including privacy features – which change frequently – prior to using such a network.
In sum, a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror’s ESM is communication within this framework. The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Model Rule 3.5(b). If 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.
This opinion was formed by the ABA’s Standing Committee, so you should not rely on it. It may be a helpful guide if you find yourself in this situation, but you should review any Washington opinions on this subject.