American Bar Association Says Social Media Is Fair Game

In April of this year, the American Bar Association (ABA) issued a formal opinion from its Standing Committee on Ethics and Professional Responsibility. In Formal Opinion 466, the ABA provided guidance to trial lawyers with regards to researching potential jurors’ social media websites. Social media websites such as Facebook, Twitter, MySpace, LinkedIn, and others are considered fair game for viewing so long as the research does not involve contact with the prospective juror, either by the attorney or someone acting on the attorney’s behalf.

The opinion really concerns whether such research would violate the ABA’s Model Rule of Professional Conduct 3.5(b), which prohibits attorneys from ex parte communications with jurors and prospective jurors. In the opinion of the ABA ethics committee, unless prohibited by law or court order, a lawyer “may review a juror’s or potential juror’s Internet presence…but may not communicate directly or through another with a juror or potential juror.” In other words, you can conduct internet research of potential jurors prior to and when selecting a jury, but you cannot contact them. This includes social media websites that are open to the public, which is the key.

However, a lawyer “may not, either personally or through another, send an access request to a juror’s electronic social media.” While the opinion did not include “potential juror” in this prohibition, one must assume it intended to. This means that a lawyer may not send a friend request to a juror, or potential juror, on Facebook, or any other social media that requires access, for the purpose of viewing information that was not open to the public. According to the opinion, this type of communication would be “the type of ex parte communication prohibited by Rule 3.5(b).” In other words, if a juror or potential juror maintains a website, or an open and public social media website, the lawyer may view that information. However, the lawyer cannot seek to gain access to information that is not open to the public.

The opinion also dealt with the situation created by some social media websites, such as LinkedIn, wherein the social media program actually notifies the person that his or her profile has been viewed, and by whom. According to the opinion, “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).”

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