ABA: Lawyers can scan jurors’ social-media sites

Associated Press

SAN FRANCISCO

Lawyers have been given the green light to scan the social-media sites of jurors.

The American Bar Association says it’s ethical for lawyers to scour online for publicly available musings of citizens called for jury service — and even jurors in deliberations.

But the ABA does warn lawyers against actively “following” or “friending” jurors or otherwise invading their private Internet areas.

Though judges now universally admonish jurors to refrain from discussing trials on social media, the nationwide lawyers group for the first time is addressing how deeply attorneys, their investigators and their consultants can probe for information that might signal leanings of potential jurors, or unearth juror misconduct during trials.

Jurors’ online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings over the effects of Facebook musings, tweets and blog writings about their trial experiences. Lawyers and judges also have been wrangling over how far attorneys can go in assembling a jury with help from online research of jurors’ social-media habits.

A few judges have denied lawyers permission to research social-media sites as overly invasive while others have allowed it. One company has gone so far as to develop a software product that promises to create a juror profile through social-media posts and monitor jurors during the trial.

The ABA’s ethics committee began reviewing the issue about two years ago and concluded in April that looking at Facebook posts, Twitter tweets and other information gathered passively is ethical research.

“It’s like any other publicly available information,” said Donald Lundberg, an Indianapolis attorney who helped draft the ABA’s opinion as an ethics committee member.

Lundberg said one of the thornier issues for the committee was whether lawyers could view LinkedIn and other social-media sites that notify members that they have been searched.

Ultimately, the ABA committee decided a LinkedIn search was ethically sound, which runs counter to an opinion issued by the New York City Bar Association in 2010 that said any notice sent to a potential juror about a search amounts to an unauthorized communication.

Last year, New York defense attorney Barry Berke hired a jury consultant firm and instructed it to search social media sites of potential jurors in the insider-trading case of Michael Steinberg. The consultant was looking for anti-Wall Street comments or other signs of possible bias. Prospective jurors thought to be biased were removed from the pool. Still, the former SAC Capital Advisors executive was convicted of insider trading and sentenced to 3 1/2 years in prison.