In a new ethics opinion (Formal Opinion 466 ), the ABA Standing Committee on Ethics and Professionalism opines that lawyers may access public information that jurors or potential jurors put on the Internet about themselves, but they may not communicate directly with the jurors, such as asking to “friend” them on Facebook or “connect” with them on Linked In. The Committee’s summary of the opinion states:
Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential 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 to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).
The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).
In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.
ABA ethics opinions are not binding authority but are often adopted by state ethics authorities construing state rules based upon the ABA’s Model Rules of Professional Conduct.