When selecting a jury, attorneys seek as much information as possible about the prospective jurors. With limited time for voir dire, it is often fruitful to turn to online sources of information: entering prospective jurors’ names into a search engine such as Google, examining public record databases, and viewing profiles on social media sites such as Facebook, Instagram, and LinkedIn. But there are important ethical caveats.
First, an attorney must not seek to obtain information through deceptive or unlawful acts, such as attempting to access private information by posing as someone else or pretending to have another purpose. Under Business and Professions Code Section 6106, an act involving dishonesty is a cause for discipline, and Business and Professions Code section 6068(d) imposes a duty to use “means only as are consistent with truth” in maintaining the client’s cause.
Second, under California Rules of Professional Conduct (CRPC) 5-320(A) and (F), an attorney connected with the case must not “communicate directly or indirectly” with anyone the attorney knows to be a prospective juror or a prospective juror’s family member. In most instances, using a search engine and viewing the results should not result in any such communication. Sending a friend request to the prospective juror on Facebook, or an invitation on LinkedIn, is at least an indirect communication and therefore prohibited. (See San Diego County Bar Ass’n Legal Ethics Opn. 2011-2.)
An unsettled question is whether simply viewing a prospective juror’s public social media profile involves an impermissible communication if the site notifies the prospective juror. The New York City Bar Association’s Professional Ethics Committee (Formal Opinion 2012-2) concluded that it does, at least if the attorney knew that the prospective juror would be notified.
Formal Opinion 466 of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility decided otherwise under ABA Model Rule 3.5(b) – which provides that a lawyer shall not “communicate” with a prospective juror – reasoning that the lawyer is not the one communicating if the social media service sends an automated notice. However, CRPC 5-320(A) prohibits communicating “directly or indirectly,” so California attorneys should learn the practices of social media sites and, out of caution, not view a prospective juror’s profile if it will trigger a notice.
In addition, CRPC 5-320(E) provides that an attorney must not investigate jurors in a manner likely to influence the prospective juror’s state of mind in connection with present or future jury service.
Finally, an attorney cannot ethically avoid these problems by having others, such as a jury consultant or assistant, conduct the online research. CRPC 5-320(A) pertains to indirect as well as direct communications. CRPC 1-120 provides that a lawyer “shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.” Moreover, CRPC 3-110, which imposes a duty to supervise subordinate attorneys and non-attorney employees or agents, prohibits the attorney from circumventing ethical rules and requires supervision of others so they do not violate the rules on their own.
About the author:
Carl W. Chamberlin is an attorney, adjunct professor, and member of the BASF Legal Ethics Committee. The views expressed in this article are his own.