ABA limits use of social media to investigate jurors

 Steve Lash, The Daily Record Newswire

Lawyers can look, but they can’t “like” when seeking information about jurors and prospective jurors on social media, the American Bar Association states in an ethics opinion released this month.

Specifically, the opinion says lawyers may surf electronic social media — such as Facebook, Twitter and LinkedIn — to investigate the likes, dislikes, views and employment history of those sitting and who may be sitting in judgment of defendants. However, attorneys are prohibited from sending an access request, such as asking to be the juror or prospective’s “friend,” either personally or through an agent.

“Passive review of a juror’s website, or [electronic social media], that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b),” the ABA opinion states, referring to the rule on inappropriate communication with a juror or prospective juror.

“In the world outside of the Internet, a lawyer or another, working on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decision,” the opinion adds. “The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b).”

Retired Howard County Circuit Judge Dennis M. Sweeney, who has written on the implications of social media on jury behavior, said he expected the ABA’s ethicists to allow attorneys to search the publicly available online information on jurors and potential jurors.

“This is pretty much where people thought the law would be,” he said.

But Sweeney criticized the bar association for its “narrow” opinion that attorneys should alert judges upon discovering criminal or fraudulent misconduct by jurors or prospective jurors during an online search of social media sites.

Sweeney said lawyers have a duty to be “candid with the tribunal” regarding any behavior that undermines the fair administration of justice.

For example, lawyers should tell the court of any racist photos they see on the website of a juror who said during pretrial, or voir dire, questioning that he or she held no racial biases against minority defendants, Sweeney said.

“That stuff is not fraudulent or criminal conduct, but it is relevant to the proceeding,” he added. “I would as a judge expect the attorney to disclose that information. That certainly indicates we have a juror who has a major problem.”

Sweeney is no stranger to jurors and the Internet.

He presided over the trial of then-Baltimore Mayor Sheila Dixon, who was convicted of misdemeanor misappropriation of gift cards in 2009. When the jurors’ names were released the day after the verdict, a Daily Record reporter discovered that several jurors had become Facebook friends during the trial and made references to the case — including its duration and the food and pay they received for it — in online messages between days of deliberations.

“The lawyers in that case had done a lot of searching, but they didn’t reach the Facebook part of it,” said Sweeney, now a neutral with arbitration firm JAMS in Greenbelt.

He added that neither social networking nor the ethical issues raised by it are going away.

“It’s an ongoing process here,” Sweeney said. “[The ABA’s opinion] won’t be the last word.”

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