ABA Releases Ethics Opinion On Juror Social Media Research

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “ABA Releases Ethics Opinion On Juror Social Media Research,” was published in the Defense Research Institute’s Trials and Tribulations Newsletter. In the piece, he surveys and comments upon the recent ABA rulings and notes its broader implications.

Here’s the first two paragraphs of the article:

In 2014, we, as practicing defense lawyers, find ourselves more than a decade into the age of social media in litigation. These days, without fail, nearly every legal publication and trade journal of note features an article about the value of social media in litigation. Over the years, we’ve learned the benefits of an online investigation of Plaintiffs (and the potential for splendid impeachment material which can arise from such queries), efforts to explore the backgrounds of Plaintiffs’ retained testifying experts , and of course, the general perils of lawyers using social media. We all know that prospective and sitting jurors use – and occasionally abuse – social media. In fact, these days, when preparing for trial, litigators rely upon social media data in determining which prospective jurors to consider or strike from the venire panel. Recently, on April 24, 2014, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, entitled “Lawyer Reviewing Jurors’ Internet Presence.” Generally, this comprehensive nine page ethical opinion offers guidance to litigators using social media to investigate potential and sitting jurors. Interpreting pre-Internet principles and applying them to the ever growing social media landscape, the new ABA opinion, as persuasive authority, offers guidance on these issues. The bottom line: When preparing for trial and investigating jurors, be mindful of the potential ethical issues at hand.

First and foremost, yes, litigators can investigate and review publicly available social media profiles of sitting and prospective jurors. The ABA opinion provides that “a lawyer may passively review a juror’s public presence on the Internet.” Like many, jurors have profiles on Twitter, Facebook, and LinkedIn (and countless other sites), and lawyers can input the juror’s name into their search engine of choice and review the results without fear of ethical implications. This conclusion makes perfect sense, as there is no reason to deprive lawyers of the ability to access information that the juror has published online for the world to see. In the opinion, the ABA committee likens this “passive review” of such public information to a lawyer “driving down the street where the prospective juror lives to observe the environs in order to glean publically available information that could inform the lawyer’s jury-selection decisions.”

For the rest of the article, please click here.

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