Lawyers are free to mine the social-media accounts of jurors, but they may not request access to an account that’s hidden behind a privacy wall, according to an ethics opinion issued Thursday by the American Bar Association.
In sum, the rules give lawyers a green light to scour a juror’s Twitter feed, Facebook account or any other site where they posted comments, photos or videos about themselves for anyone to see. Everything that’s public online is fair game. And the same goes for potential jurors during jury selection.
But lawyers are advised against Facebook ‘friending” a juror, sending a Twitter follower or LinkedIn request to a juror who restricts access to their accounts. That’s considered communication under ABA rules restricting contact between lawyers and jurors not authorized by the court.
“This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past,” stated the opinion, which was handed down by the ABA’s Standing Committee on Ethics and Professional Responsibility.
The opinion also advises lawyers what to do if they stumble across content about a juror that they suspect may be evidence of improper behavior.
They’re only obligated to report it to the court if the juror or a potential one appears to be up to something that looks “criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.”
But if lawyers encounter something more innocuous, like a juror tweeting about a rotten meal she had at the court cafeteria, they don’t have to tell anyone, even if the juror appears to be disobeying instructions about what she can say outside the courtroom.