The ABA has recently issued a new ethics opinion (Lawyers Reviewing Jurors' Internet Presence) on lawyers using the Internet to research jurors. The opinion offers no real surprises. It is ethical for attorneys to use the Internet to research jurors so long as they don't contact jurors to include friending them on social media. Several jurisdictions have already reached this conclusion. I am still waiting for the opinion which holds that attorney research of jurors is now part of professional competence.
What I did find noteworthy is where the opinion diverges from other jurisdictions. The New York City Bar has previously held that if a social media provider like Twitter contacted the juror rather than the lawyer this still was an ethics violation. For example, the attorney subscribes to the juror's tweet and Twitter generates an automated message alerting the juror that she is now being followed by that attorney. The NY City Bar says this might be an ethical violation while the ABA says that it is not because
[t]he lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.
Discussion by the trial judge of the likely practice of trial lawyers reviewing juror ESM during the jury orientation process will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network.
I think NY got it wrong and the ABA got it right.
Another interesting topic raised in the opinion concerns turning over the information discovered about jurors. The rule is fairly clear when the information is criminal or fraudulent. The attorney must turn it over. However, as noted by the opinion, the rules regarding information falling outside of those two areas is "muddled." (It should be noted that certain jurisdictions provide more guidance in this area than the Model ABA Rules.) In an effort to add some clarity to this area of law, I have previously suggested in a law review article (Investigating Jurors in the Digital Age: One Click at a Time) that the courts or the bar should either either update the ethical rules or make information about jurors subject to the rules of discovery.