Let’s be honest: don’t we all want to know as much as humanly possible when evaluating a jury pool and determining motions for cause and peremptory strikes? I dare
say the answer is a resounding, “Hell, yes!”
The Internet provides a treasure trove of information about pretty much anything we can imagine… including potential jurors. Time and resources permitting, it’s becoming standard practice to “Google” the panel (i.e., scour their online presence). Unless, of course, the judge or local rules prohibit (or strongly discourage) doing so.
Enter: opinions and guidelines from the ABA, the Eastern District of Texas, and New York. Although these guidelines have much in common, there are subtle differences among them.
Before we get into the weeds, let’s start with the basics.
Almost three years ago, the American Bar Association issued its Formal Opinion 466: “Lawyer Reviewing Jurors’ Internet Presence.” If you’ve never read it, do so. It outlines ethical guidelines and parameters for conducting any sort of online research on prospective or actual jurors. It is what I consider to be the standard. If you’re not following the ABA guidelines, then it’s time to reassess and modify your search protocol.
First and foremost, the ABA says, yes, you may Google a prospective and/or actual juror. But there are exceptions.
Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.
This is the important part: you “may not communicate directly or through another.” The challenge lies in defining the term “communicate.” The ABA writes:
A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).
In other words, under no uncertain terms may you directly or indirectly have any sort of “exchange” with a juror. If the juror’s profile is public, reviewing the data is fair game. But if the data is limited because you are not “connected” or because the juror’s privacy settings do not give you access (and you do not yet have that status)? That. Is. Forbidden. Fruit. Which means you cannot do the following:
- “Friend” them on Facebook.
- “Follow” them on Twitter or Instagram (or anything similar).
- “Connect” on LinkedIn.
- Post comments on the juror’s profile(s), blog(s), websites(s), etc.
- Have someone else connect for the purpose of providing information to you.
Let’s talk about LinkedIn for a minute. LinkedIn has recently undergone some changes, but one thing remains: the ability of a member to receive automatic notification alerts when another member views his profile. For example, if I am not connected to John Doe and I visit his LinkedIn profile, the LinkedIn algorithms will work their magic and may automatically send John Doe an alert that I have viewed his profile.
This? According to the ABA, is not considered a type of “communication.”
The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).
But the New York State Bar Association has a slightly different perspective. In New York, the consensus is that those pesky automated notifications could, in fact, be considered “communications,” and should be avoided.
In a 2013 Bank of American fraud case, an attorney had reviewed a juror’s LinkedIn profile. During jury selection, the juror said, “the defense was checking on me on social media” and “I feel intimidated and don’t feel like I can be objective.” One might assume the juror received the automated “I’m-looking-at-you” notification from LinkedIn. These alerts may not rise to the level of an ethical violation or disciplinary issue, but they certainly have the potential to unnerve potential jurors.
Does this mean you have to avoid LinkedIn searches altogether? Not necessarily. There are “anonymous” privacy settings within member profiles that may put this issue to bed, but it’s a judgment call you’ll have to make.
Finally, let’s talk about the recent Eastern District of Texas Standing Order issued by Judge Gilstrap in January. It actually reiterates the ABA guidelines, with one important caveat. Judge Gilstrap expands the obligation of abiding by ABA guidelines to folks other than licensed attorneys. And he expects the issue to be discussed no less than 30 days before jury selection begins.
Accordingly, it is ORDERED that counsel in every case shall ensure that the following are made aware of this Order and its prohibitions not later than 30 days prior to jury selection:
1. Other attorneys in their respective firms or who may be assisting them or consulting with them on a case;
2. Their employees and agents, including jury consultants;
3. Their clients in the case, and for corporate or other business institutions, the general counsel and the corporate representatives or entity representatives involved in the case.
This means your entire trial team must be aware of the guidelines and adhere to them: legal assistants, secretaries, witnesses, clients, trial consultants, technology vendors, etc. And the order holds you, the attorney of record, accountable if something goes awry.
And nobody wants that to happen.
In our next post, we’ll address issues related to the duty, if any, to disclose information discovered during the Internet searches. In the meantime, if you have specific questions you’d like us to address, please drop us a note!