Ethics - Social Media and Jury Selection
Searching juror's websites and social media for information on potential jurors is no longer just advisable, it is the standard. But lawyers need to know the limits of permissible contact so they comply with the applicable rules. This Guide outlines the rules you need to know.
Lawyer Competence Rule 1.1"A lawyer shall provide competent representation to a client." This means, in jury selection, reviewing website and social media information posted by potential jurors.
See also Comment 8: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology...."
General Rule: A lawyer must not communicate with Jurors: 3.5(b)There are three possible scenarios:
1. passive review of websites and social media;
2. passive review of websites social media with notification to subject; and
3. requests for access.
ABA Formal Opinion 4661. Passive review of a juror's website or electronic social media (ESM) does not violate 3.5(b).
2. Passive review of ESM - even when the ESM network notifies the subject of the review, does not violate 3.5(b). *
3. Request for access to a website or ESM is a communication with the juror, and cannot be done directly or indirectly.
*Two recent opinions from the Association of the Bar of New York City and the New York County Lawyers Association have a slightly different take on this. These are covered in the ABA opinion, and suggest that if the lawyers know of the notification, then the contact - although indirect - may consist of impermissible communication.