News and Events
Recent ABA Ethics Opinion Gives Illinois Trial Lawyers Pause when Researching Prospective Jurors Online
July 21, 2014Ronald NerodaRelated Practice Areas: Professional LiabilityIntroduction
In the 2003 film, Runaway Jury, Gene Hackman plays Rankin Fitch, a jury consultant for gun manufacturer sued by the widow of an office shooting victim. The manufacturer hired Finch to investigate jurors’ backgrounds, ultimately through both legitimate and unlawful means.
Today, technology allows lawyers to obtain a variety of information about jurors without the need to hire Rankin Fitch. Recently, the ABA Standing Committee on Ethics & Professional Responsibility addressed lawyer research of jurors on the Internet (ABA Standing Comm. on Ethics & Prof. Resp., Lawyer Reviewing Jurors’ Internet Presence, Formal Op. No. 466 (Apr. 24, 2014)).
The Opinion
The Committee was asked whether a trial lawyer may review jurors’ presence on the Internet and what ethical obligations arise regarding information discovered about jurors. The Opinion applies to both empanelled and potential jurors, and provides directives pertaining to a lawyer’s actions in researching jurors on the Internet:
“Unless limited by law or court order, a lawyer may review a juror’s…Internet presence, which may include postings by the juror…in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror…
A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication…asking the juror for information that the juror has not made public…
In the course of reviewing a juror’s…Internet presence, if a lawyer discovers evidence of juror…misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.”
The Opinion distinguishes between two types of Internet presence, and addresses different “levels” of lawyer review of juror Internet presence. The types of Internet presence are: (1) “websites,” defined as blogs, websites, and other electronic media, readily accessible by anyone on the Internet; and (2) “electronic social media (ESM),” defined as social media sites that readily allow account-owner restrictions on access, such as Facebook, MySpace, LinkedIn, and Twitter.
The different levels of Internet presence are described as:
1. passive lawyer review of a juror’s website or ESM available without making an access request where the juror is unaware that a website or ESM has been reviewed; and
2. active lawyer review where the lawyer requests access to the juror’s ESM.
The opinion notes the need to balance lawyers’ rights to research jurors for bias or prejudice, with improper forms of ex parte communication between parties and jurors.
ABA Recommendations
Noting that the line between properly investigating jurors and improperly communicating with them is increasingly blurred in this day and age, the ABA encourages judges and lawyers to discuss the court’s expectations.
The ABA also recommends that judges, “consider advising jurors…that the lawyers…may investigate their backgrounds, including review of their ESM and websites.”
The Opinion further refers to ABA Model Rule of Professional Conduct 3.5(b), which prohibits ex parte communications with jurors. It decided, however, that “passive review of a juror’s website or ESM,” available without an access request, and of which the juror is unaware, does not violate Rule 3.5(b). “The mere act of observing that which is open to the public,” does not violate Rule 3.5(b).
Conversely, the Opinion states that a lawyer may not send an “access request” to a juror asking the juror for information that the juror has not made public, which would violate Rule 3.5(b).
Juror Misconduct
The Opinion not only prohibits certain conduct, but highlights an instance where a lawyer would be obligated to take affirmative steps following review of a juror’s Internet presence. If, by passively viewing a juror’s Internet presence, a lawyer becomes aware of juror conduct that is criminal or fraudulent, the lawyer is required to take remedial measures, including reporting the matter to the court under Model Rule 3.3(b).
A lawyer may also, however, become aware of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct; in that case, Rule 3.3(b) does not address what is required of the lawyer.
The ABA states that “[w]hile any Internet postings about the case by a juror during trial may violate court instructions, the obligation of a lawyer to take action will depend on the lawyer’s assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes.” As an example, “innocuous postings about jury service, such as the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt.”
The duty of a lawyer to act affirmatively would arise only where the juror’s conduct is “criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.” The Opinion advises that “the materiality of juror Internet communications to the integrity of the trial will likely be a consideration in determining whether the juror has acted criminally or fraudulently.”
Impact to Illinois Lawyers
Although Illinois has not adopted the ABA Model Rules of Professional Conduct, the relevant sections of the ABA Rules mentioned herein mirror the language of the Illinois Rules of Professional Responsibility. Accordingly, although the ABA Opinion may not be binding upon Illinois lawyers, it should, at minimum, operate as a cautionary guide to Illinois lawyers preparing for jury trials in this state.
