The ABA Standing Committee on Ethics and Professional Responsibility recently issued an opinion addressing lawyers’ review of jurors’ internet presence distinguishing: (i) a “passive lawyer review” (i.e., a juror’s webpage is publicly available and the juror is unaware of lawyer’s review); (ii) an “active lawyer review” (i.e., the lawyer actually requests access to the juror’s webpage to be able to see the information); and (iii) a “passive lawyer review” (i.e.,the juror’s webpage is publicly available but the juror is notified of lawyer’s visit by an electronic social media (“ESM”)’s function).
The Committee concluded that situation number (i) is not an ex parte communication prohibited by Model Rule 3.5(b). On converse, situation number (ii) is certainly prohibited under Rule 3.5(b). A lawyer may not, either personally or through another, actively send a request to a juror’s electronic social media, because this would represent an illicit ex parte communication.
Situation no. (iii) is also ethical but required the Committee more analysis. The Committee analogizes this situation to that a lawyer who drives down the juror’s street; the juror does not see him but a neighbor recognizes the lawyer and tells the juror. The Committee’s conclusion is that “the ESM-generated notice to a juror that a lawyer has reviewed the juror’s information is not communication from the lawyer to the juror.”
The Committee also opines that if while “passively viewing juror Internet presence”, a lawyer becomes aware of jurors’ misconduct, pursuant to Rule 3.3(b), she “must take reasonable remedial measures including, if necessary, disclosure to the tribunal”.
Relevant Law: Model Rule of Professional Conduct: 1.1, 3.3(b), 3.5(b), 4.4
Referenced Ethics Opinions:
- Or. State Bar Ass’n, Formal Op. 2013-189
- N.Y. Cnty. Lawyers Ass’n, Formal Op. 743 (2011)
- Ky. Bar Ass’n, Op. E-434
- N.Y. State Bar Ass’n, Advisory Op. 843 (2010)
- Conn. Bar Ass’n, Informal Op. 2011-4
- Mo. Bar Ass’n, Informal Op. 2009-0003
- Phila. Bar Ass’n, Advisory Op. 2009-02
- N. H. Bar Ass’n, Op. 2012-13/05
- Ass’n of the Bar of the City of N. Y. Comm. on Prof’l Ethics, Formal Op. 2012-2
The full text is available at: http://www.abajournal…