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ABA: Lawyers should not contact jurors through social media

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Attorneys can look at a juror’s public Facebook page but shouldn’t message the juror through the Internet or social media and try to access a private account, according to a formal opinion released Thursday by the American Bar Association.

The ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 on Lawyer Reviewing Jurors’ Internet Presence.

“There is a strong public interest in identifying jurors who might be tainted by improper bias or prejudice. There is a related and equally strong public policy in preventing jurors from being approached ex parte by the parties to the case or their agents,” the opinion says. “Lawyers need to know where the line should be draw between properly investigating jurors and improperly communicating with them. In today’s Internet-saturated world, the line is increasingly blurred.”

“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 (Model) Rule 3.5(b). In the world outside of the Internet, a lawyer or another, acting 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 decisions,” the opinion states.

The committee believes a lawyer, either personally or through another, may not send an access request to a juror’s private website or social media account. This is an active review of the juror’s electronic social media by the lawyer and is a communication asking the juror for information not made public.

“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.”

It is not considered a communication from the lawyer in violation of Rule 3.5(b) if a juror or potential juror becomes aware that a lawyer is reviewing the juror’s Internet presence when the social media network setting notifies the juror of such review. Also, if a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal, the opinion says.

“We strongly encourage judges and lawyers to discuss the court’s expectations concerning lawyers reviewing juror presence on the Internet. A court order, whether in the form of a local rule, a standing order, or a case management order in a particular matter, will, in addition to the applicable Rules of Professional Conduct, govern the conduct of counsel.”

The full opinion is not yet available on the ABA’s Ethics Opinions website but the ABA Journal has a copy posted online.
 

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  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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