Not totally off-limits

ABA permits some investigation of jurors’ ‘Internet presence’

Ethics

Thomas P. McGarry and Thomas P. Sukowicz

Tom McGarry is leader of Hinshaw & Culbertson national lawyers professional liability practice and handles professional liability defense, legal ethics and the defense of lawyers in disciplinary proceedings.

Thomas Sukowicz has devoted his entire career to issues involving lawyers’ professional liability and responsibility. His practice involves professional liability, legal ethics, risk management, loss prevention and the defense of lawyers in disciplinary proceedings.

When a lawyer wants information about potential jurors or the selected jurors, how far can the lawyer go to obtain information on the Internet?

The American Bar Association issued Formal Opinion 466 in April, “Lawyer Reviewing Jurors’ Internet Presence,” which discusses the propriety of lawyers accessing a juror’s or potential juror’s Internet presence, particularly in terms of whether it would violate Rule 3.5 of the ABA Model Rules of Professional Conduct, which is identical to Rule 3.5 of the Illinois Rules of Professional Conduct.

Both Rule 3.5s provide some general guidance with respect to communications with jurors. Rule 3.5(a) prohibits a lawyer from seeking to influence a juror or prospective juror by means prohibited by law. Comment [1] to that rule notes that many forms of improper influence upon a tribunal are proscribed by criminal law. Rule 3.5(b) prohibits ex parte communications with jurors during the proceeding unless authorized to do so by law or court order.

The ABA opinion addresses three levels of lawyer review of juror Internet presence:

•Passive lawyer review of a juror’s Internet presence that is available without making an access request in which the juror is unaware that her or his Internet presence has been reviewed.

  • Active lawyer review in which the lawyer requests access to the juror’s owner-restricted Internet presence.
  • Passive lawyer review when the juror becomes aware through a feature of the Internet site of the identity of the viewer.

Preliminarily, the opinion noted the distinction between publicly accessible sites and those that readily allow account-owner restrictions on access, such as Facebook, MySpace, LinkedIn and Twitter, where access depends on the willingness of the subscriber to grant permission. With respect to the first level of lawyer review of a juror’s Internet presence, the opinion concludes that the passive review of information available on the Internet without making an access request does not violate Rule 3.5(b). The opinion compared this kind of Internet access to any other kind of investigation into a juror that did not involve communicating with the juror.

As for the second level, in which a lawyer requests access to the juror’s owner-restricted Internet presence, Opinion 466 concludes: A lawyer may not, either personally or through another, send an access request to a juror’s social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The opinion comments that at least one court decision held that communicating with a member of a jury selected for trial of a lawyer’s client was a “serious crime” warranting disbarment. In re Holman, 286 S.E.2d 148 (S.C. 1982). It also remarked that a “lawyer may not do through the acts of another what the lawyer is prohibited from doing directly,” which is prohibited by Rule 8.4(a).

The third level of lawyer review, in which a juror or a potential juror becomes aware that the lawyer is reviewing her or his Internet presence, such as when a network setting notifies the juror of the review by another person, does not constitute a “communication” from the lawyer in violation of Rule 3.5(b).

The opinion discusses other issues that could arise when a lawyer investigates the Internet presence of a juror or potential juror, such as discovering evidence of misconduct that a juror has engaged in criminal or fraudulent activity related to the judicial proceeding. It concludes that the lawyer must take reasonable remedial measures including disclosure to the tribunal.

The opinion raises the question of whether the standard of care for competent lawyer performance requires using Internet research to locate information about jurors that is relevant to the jury-selection process, but it specifically declined to take a position on that issue. It noted, however, that Comment [8] to Model Rule 1.1 suggests that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” in connection with the duty recognized by other states to obtain information about jurors and potential jurors including investigation through social media of the juror’s Internet presence.

The opinion provides a practical suggestion for addressing the issues it discussed in the context of pending litigation involving a jury. Because the line between properly investigating jurors and improperly communicating with them by ex parte Internet contacts is increasingly blurred, the opinion says judges and lawyers should discuss the issue of lawyers reviewing juror presence on the Internet. And the court might issue an appropriate order, adopt a local rule or issue a standing order to govern the conduct of the attorneys’ Internet investigation of jurors and communications with them.

It also suggests that judges advise jurors that their backgrounds will be of interest to the litigants and that the lawyers may investigate their backgrounds by reviewing their Internet presence.