Lawyers Should Not "Friend" Jurors But Can View Public Information

The American Bar Association recently issued Formal Opinion 466 concerning potential ethical problems with lawyers communicating with potential jurors through social media.  The opinion provides the following advice to lawyers:

• A "passive review" of a juror's public social media site is not improper ex parte conduct, similar to driving down a juror's street to gather information about the juror.

• Asking a juror for access to his or her social media account (i.e., "friending" a juror) is improper, much like stopping the car to ask the juror's permission to look inside his or her home.

• The fact that a juror may become aware that the lawyer reviewed his public social media account does not constitute a communication from the lawyer. 

The opinion also recommends that judges and lawyers discuss the court's expectations concerning lawyer review of juror social media information, and suggests that courts issue an order or have standing rules in place to provide guidance to lawyers.

The opinion also recommends that jurors be instructed not to use social media to communicate about their jury service or a pending case.  If a lawyer becomes aware of juror misconduct, the lawyer may be obligated to take some remedial action, including reporting the juror's conduct to the court, depending on the nature of the communication.  For example, the opinion noted that a juror complaining about the qualify of the food at lunch is not likely to justify criminal contempt, but substantive communications about the trial could go to the integrity of the trial.