By injury lawyer Michael Ehline – In recent weeks the ABA Standing Committee on Ethics and Professionalism has issued a formal ethics opinion on attorneys who would like to use public information found on the internet may do so, but the lawyer is not permitted to have direct communication.
I think it is fair to say that most PI lawyers I know, as well as insurance adjustors are using social media and other publicly available information to “size up” parties and even their own clients. In fact, it has happened on more than one occasion that a car accident victim claiming severe personal injuries is caught posting a picture of him or her at the gym, off-road racing on a motorbike, and so on and so forth.
So it was no shocker to most of us lawyers in the injury law practice field who normally and routinely conduct Subrosa, when the ABA finally arrived at an opinion regarding potential jurors and discovery of their publicly available info. Obviously, this info is very important during voire dire (jury selection), and cold definitely be of great use when selecting an unbiased juror.
This ability of attorneys to use the accumulation of public information on the internet in places like social media like Facebook sites to gain information about potential jurors is obviously of great value when electing to exercise a limited number of challenges for cause, as opposed to a limited amount of peremptory challenges. In doing this, the lawyer is not permitted to friend the person on social media websites, or have any direct contact with the person.
These opinions are based on the ABA’s Model Rules of Professional Conduct and information can be found in the Formal Opinion 466 (PDF) that all states with the exception of California have espoused. The websites that are mentioned in the PDF file include Internet social media websites such as Twitter, Facebook, MySpace and LinkedIn.
There are two cautions for legal professionals who use public information found on the Internet, which are that there is a capability for information to change frequently and there is EMS or the potential jurors ability to know who has viewed the public information. The ABA states that the rules are not binding, but the information gained should be used only generically and these rules should serve as a model that can be either adopted or modified.
This information that is public on the internet is commonly known as Internet footprints and the Formal Opinion 466 outlines three circumstances for attorney’s review of potential juror’s public data, which include:
- Public Information: This is searching for information that is available to everyone on websites or social media accounts, in cases where the juror does not know this event is occurring. The Formal Opinion states this should be the “mere act of observing” does not mean “improper ex parte” conduct, which would be in the same scope as driving through the jurors neighborhood to learn about their environment.
- When a Potential Juror is Notified: This is when a potential juror or juror is notified as a feature of a social media platform or website that their public information is being looked at, is not considered direct communication by the attorney. This is equivalent to a neighbor or coworker seeing a vehicle that may or may not be the lawyers and telling the juror.
- Attorneys Requesting Access to Potential Jurors Social Media: The Formal Opinion states that according to their rules it is inappropriate for a lawyer to request to have access to a potential juror or juror’s social media sites that are not public information. That they feel, it would be equivalent to requesting to see the inside of a jurors home.
This opinion reminds attorneys reading social media according to the terms of agreement and automatic subscriber notifications and information change frequently and without notice. The one issue that the rules did touch on was that an attorney has the obligation to notify the court of information that is gained through use of social media in the event that there may possibly be misconduct by a juror.
There has been one revision to the ABA Ethics 2000 Commission and this is after an extensive review was conducted of the Model Rules. Model Rule 3.3, as adopted by the ABA House of Delegates from the commission’s recommendation as a new subsection. This is subsection, (b) involving an attorneys obligation to notify the court, in the event a potential juror or juror has behaved with fraudulent or criminal behavior.
The intent was to also include “improper conduct” which is a lesser wrongdoing by the potential juror or juror that the Standing Committee stated in the Formal Opinion was not added.
Model Rule 3.3.(b) outlines that if a lawyer finds during gleaning public information for a juror or potential juror that they have violated court instructions on the Internet, which may not be considered fraudulent or criminal laws, “applicable Law” may indicate the attorney has a duty to inform the court of the violation.