Can a Lawyer Google a Potential Juror?
Social media is an every growing presence in our lives, and this question has been simmering for a while. The American Bar Association has now weighed in, offering guidance in Formal Opinion 466. You can read it here.
Balancing a lawyer's legitimate task of uncovering improper juror bias and prejudice and ethical rules prohibiting ex parte and improper communication with jurors, the ABA's Formal Opinion concludes that a juror's or potential juror's publicly available information on the internet may be viewed by lawyers. If the lawyer discovers evidence of misconduct that is criminal or fraudulent in the process, the lawyer must take reasonable remedial measures including, if necessary, telling the court.
This Opinion follows the lead of many individual state bar organizations that have considered the issue. Essentially the approach allows lawyers to google jurors and look at anything that is otherwise publicly available. Lawyers are not allowed to make direct contact with the potential jurors online, nor are they allowed to do anything deceptive in their research.
A stickier question was also addressed – if the internet research will alert the potential juror that the lawyer has been looking, is that allowed? For example, when you look at a Facebook profile, the owner never knows you have visited their site. On the other hand, LinkedIn, a popular social network with a business focus, does report to the owner the identity of visitors. The Opinion concludes that even though the lawyer's research may become known to the potential juror, it is allowed. This one way look does not reach the level of prohibited contact.
Of course, what a potential juror might think of lawyers reviewing their social media presence remains unknown, and may certainly be the focus of some pre-trial forethought. I can certainly see jurors being turned off, if not outright upset, to learn that one of the lawyers in the case was snooping.