I am thrilled that the ABA has finally come out and taken a position on trials and the musings of potential jurors and jurors on social media sites. The ethical issues with investigating jurors was a dicey area for many lawyers so I know I cannot be the only one who is applauding the ABA.
The American Bar Association says it’s ethical for lawyers to look online for publicly available comments of people called for jury service ” and even jurors in deliberations. But the ABA does warn lawyers against actively “following” or “friending” jurors. Though judges direct jurors to not discuss trials on social media, the nationwide lawyers group is finally addressing how deeply attorneys, their investigators and their consultants can probe for information that might signal leanings of potential jurors, or unearth juror misconduct during trials. Jurors’ online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings over the effects of Facebook musings, tweets and blog writings about their trial experiences. Lawyers and judges have also been wrangling over how far attorneys can go in assembling a jury with help from online research of jurors’ social media habits. A few judges have denied lawyers permission to research social media sites as overly invasive while others have allowed it. One company has gone so far as to develop a software product that promises to create a juror profile through social media posts and monitor jurors during the trial.
The ABA’s ethics committee began reviewing the issue about two years ago and concluded in April that looking at Facebook posts, Twitter tweets and other information gathered passively is ethical research. Lawyers can also view LinkedIn and other social media sites that notify members that they have been searched.
The opinion also gives lawyers guidelines on what to do if they find information about a juror that they suspect may be evidence of improper behavior. The lawyer must report the information to the court if the juror or a potential one appears to be up to something that looks œcriminal or fraudulent, including conduct that is criminally contemptuous of court instructions.
At least two state bar organizations have addressed online searches of potential jurors. The Missouri Supreme Court requires lawyers to research potential jurors’ litigation history on a Web site that tracks lawsuits in the state. The Oregon State Bar published an opinion last year that’s in line with the ABA guidelines, saying lawyers can access publicly available social media information, but can’t actively “follow” or “friend” potential jurors. The California State Bar, the biggest state bar in the country, has not addressed the issue.