The rules of professional responsibility, much like the wheels of justice, are slow to come around.
But the American Bar Association’s Standing Ethics Committee finally pulled together a formal opinion regarding searching and reviewing certain social media accounts of potential and actual jurors.
Formal Opinion 466 provides a form of security, even if indirect, for those lawyers who believe that reviewing a juror’s social media accounts can provide insight into the juror’s mind and possibly create an edge at trial.
All the opinion really means is it is now ethical to search social media accounts of jurors.
And while there may be many lawyers, especially younger ones, who view this opinion favorably, I, for one, do not relish the idea of wading through more cat videos, political diatribes, invitations to play Candy Crush or pronouncements of the results of some ridiculous survey.
Yet, it is arguable that a lawyer may glean something useful from reviewing a juror’s social media. Years ago, during a Milwaukee County trial I worked on, it was discovered that one of the jurors was blogging about the trial during breaks and at night. Nothing specific was posted as to which side was winning or losing, or what was being said in the jury room, but his musings about being bored and thoughts on things occurring at trial clearly were in violation of the court’s order.
After perusing his blogs, typos and all, the court had no trouble asking the juror to continue his rants at home.
It was a rare case in which the juror was caught. But what about the more likely situation where a juror is posting about the case but you do not know about it?
The ABA opinion makes it clear that lawyers may not contact jurors, directly or indirectly. You cannot invite a juror to be a friend on Facebook or send them a LinkedIn invite. Much like having a conversation with a juror while the trial is ongoing, directly contacting a juror through social media channels is a big “no.”
Of potential concern for you social media neophytes, however, is that some platforms, such as LinkedIn, often provide notification to a user when someone else has looked at that person’s account.
The opinion indicates this is not unethical conduct because it is similar to driving down the juror’s street and having one of the juror’s neighbors tell the juror you have been trolling past their home. But I have to disagree.
If I, or someone that I have employed, sits in a car outside of a juror’s home while the trial is going on, does anyone have any doubt that the court likely will consider that conduct juror intimidation? I cannot see how lurking on a juror’s social media, when the person can easily know you did so, is nothing more than the 21st Century version of “Runaway Jury” with Gene Hackman and John Cusack.
This contact, even if indirect or not meant to intimidate, is no less intrusive and potentially intimidating in a digitally-connected world.
I am not sure what the Wisconsin Ethics Committee will do concerning this aspect of things, but I wouldn’t risk it.
Unless you enjoy reading the service provider agreements of each social media site for which you conduct a search — and the irony should not be lost that attorneys drafted those things — the better course of action for lawyers is to just continue to do some general Internet searches.
That, at least, is still safe.
And it won’t require lawyers to tap a friendly 13-year-old to decipher what all of those hash tags, emoticons and other garbage mean.
But I’m coming around on Candy Crush. In fact, you’ll have to excuse me, I’m working on a new high score.