The Internet and social media have been around for some time now but that doesn't mean there aren't newly discovered hazards on the electronic frontier.
Consider the American Bar Association, which on Thursday issued "Formal Opinion 466" – guidance for lawyers about reviewing the "Internet Presence" of jurors or potential jurors.
Sit through any trial these days and you'll likely hear the judge warn jurors to avoid the Internet as well as newspapers and television and radio news during the trial. The reason is that jurors are supposed to base their verdict only on evidence presented under oath in a courtroom, not the media -- traditional or otherwise. Jurors have always been told not to visit the scene of a crime or do their own investigating, but Google and other search engines have become a powerful temptation. Some jurors have been dismissed from trials because they've been commenting on the experience online.
But lawyers can be tempted as well and Opinion 466 is designed to help lawyers from running afoul of ethical and professional rules. Jury selection has become a cottage industry where consultants look at prospective jurors and advise trial lawyers about who to pick and who to strike. So why not go on a prospective juror's page on Facebook or Twitter and see what opinions they've expressed? Or check to see if they tell their friends how the trial is going?
For lawyers, the problem is that rules of professional conduct bar them from trying to influence a judge, juror or prospective juror; communicating ex parte, or individually, with them about the case; or communicating with jurors after the case is over unless the juror is willing to talk.
"Lawyers need to know where the line should be drawn between properly investigating jurors and improperly communicating with them," reads the opinion by the ABA's Standing Committee on Ethics and Professional Responsibility. "In today's Internet-saturated world, the line is increasingly blurred."
The new ABA guideline says that, barring a judge's order, a lawyer may review a juror's or potential juror's Internet presence, including any postings before or during the trial, but may not communicate with them directly or through a third-party.
The fact that some social media warn the subscriber if someone – a lawyer, for instance -- has viewed their profile does not itself amount to an ethical violation for lawyers, the ABA opinions reads.
The ABA committee recommends that trial judges warn jurors "early and often" about the hazards of the Internet and potential jury misconduct. The committee also suggests that judges warn jurors that the lawyers may review their Internet profile without "acting improperly merely by viewing what the juror has revealed to all others on the same network."
The opinion advises lawyers that they'll have to assess what to do if they discover a juror is using the Internet in violation of the judge's instructions: "Innocuous postings about jury service, such as the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt."
Finally, Formal Opinion 466 also reminds lawyers of the obvious: read the fine print. Those long "terms of service" pages that many of us skip and click on "agree" may include provisions for warning the subscriber that someone is watching.