Although not quite as fast as a tweet, the law has been evolving to address the implications of social media in litigation. Just last year, the American Bar Association revised many of its Model Rules of Professional Conduct to accommodate new technologies. Addressing attorney competency, Comment 8 to Rule 1.1 now states a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Social media is the most relevant technology affecting the law and its practice due to its pervasive nature in society and the way it has fundamentally altered communication and data storage.
The practice of law is a “people business,” and what better way to understand people and their tendencies than mining their social media pages, posts and photos? This is particularly true when it comes to jury selection – a time when lawyers attempt to read the minds of potential jurors to determine whether they might find in favor of the lawyers’ clients. In April 2014, the American Bar Association approached the intersection of social media and jury selection when it deliberated the following issue:
Whether a lawyer who represents a client in a matter that will be tried to a jury may review the jurors’ or potential jurors’ presence on the Internet leading up to and during trial, and, if so, what ethical obligations the lawyer might have regarding information discovered during the review.
In its Formal Opinion 466, the ABA Standing Committee on Ethics and Professional Responsibility stated a lawyer may review a potential juror’s Internet presence for the purpose of aiding jury selection. However, the lawyer is prohibited from communicating directly with the juror, including contact by way of a “friend request” or other request to access a juror’s information not readily available to the public. In this regard, the Opinion ties together new use of social media with the traditional rule of not contacting a represented party established in California Rule of Professional Conduct 2-100(A).
Although review of a juror’s Internet presence can provide a treasure trove of information potentially useful to jury selection, it also creates an ethical obligation on behalf of the reviewing lawyer. The Opinion states a reviewing lawyer who discovers evidence of criminal or fraudulent misconduct “must take reasonable remedial measures including, if necessary, disclosure to the tribunal.” So, all the good information the lawyer found while snooping around a juror’s Facebook page could be for naught if it also uncovers misconduct leading to the removal of the juror from your case.
With this new ABA Opinion, lawyers should feel free to see what they can “dig up” through publically available information on jurors’ social media sites. However, use care to avoid any acts considered “predatory friending,” by keeping the review passive and not sending any “friend requests” or otherwise seeking to pierce the expected privacy of a juror. Even worse than being “de-friended” on Facebook is being sanctioned in court!
ABOUT THE AUTHOR: Mr. Fallon specializes in civil litigation in the areas of professional liability. He has significant experience executing litigation strategies to the benefit of his individual and corporate clients. Contact Dan at 858.263.4132 or firstname.lastname@example.org
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