Posted May 7th, 2014 in Legal Insights

Don’t “Friend” the Juror – New Ethical Guidelines Issued for Attorneys on Social Media

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 466, addressing the use of social media and other Internet resources to research both potential and seated jurors. Not surprisingly, the practice has become more widespread as attorneys seek to learn all they can about each juror’s life experiences in order to gain insight into their possible decision-making processes. But attorneys have also been wary, given the clear prohibition against communication with jurors. The ABA’s opinion provides some clarity, stating that an attorney may view a juror’s publicly available social media profiles and posts. However, an attorney cannot send any type of friend request or other communication through social media, and cannot ask a non-attorney – such as law firm staff, friends or family – to do so. If a social media site informs the juror that the attorney has viewed their online information, that is not considered an ethical violation, because the communication is sent by the site, not the attorney.  But, the opinion states that attorneys should be tech-savvy enough to know when such notifications may be sent. The opinion punts a bit when addressing an attorney’s obligation to act if juror misconduct is exposed through online searches. In particular, if an attorney learns that a juror is violating court instructions, the duty to report depends on the severity of juror misconduct, which is not always clear-cut. Nevertheless, in an increasingly digital and connected world, Formal Opinion 466 provides important guidance to attorneys and litigants. Courtney Ward-Reichard is a shareholder attorney with Nilan Johnson Lewis, and social media chair of the ABA’s Technology for the Litigator and Mass Torts committees. She can offer insights into the jury selection process, especially with regard to the ethical pitfalls presented by social media. She can be reached at 612-305-7539 or cward@nilanjohnson.com.