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The ABA Standing Committee on Ethics and Professionalism has issued a formal ethics opinion that attorneys who want to use public information found on the internet may do so. But the lawyer is not permitted to have direct communication with a juror. I think it is fair to say that most PI lawyers I know and insurance adjustors use social media and other publicly available information to “size up” parties and even their clients. On more than one occasion, a car accident victim claiming severe personal injuries is caught posting a picture of them at the gym, off-road racing on a motorbike, and so forth.
So it was no shocker to most lawyers in the injury law field. They usually and routinely conduct Subrosa when the ABA finally arrives at an opinion regarding potential jurors and discovers their publicly available info. Moreover, this info is essential during voir dire (jury selection) and could be helpful when selecting an unbiased juror.
This ability of attorneys to use the accumulation of public information on the internet on social media like Facebook to gain information about potential jurors is obviously of great value when electing to exercise a limited number of challenges for cause. After all, there are only a limited amount of peremptory challenges available. But 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 come from the ABA’s Model Rules of Professional Conduct, and information can be found in the Formal Opinion 466 (PDF) that all states except for California have espoused. The websites 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 on the Internet. Data can change frequently, and there is EMS or the potential jurors’ ability to know who has viewed the general information. The ABA states that the rules are not binding, but the knowledge gained should be used only generically, and these rules should serve as a model that can be adopted or modified.
This information that is public on the internet is commonly known as Internet footprints, and Formal Opinion 466 outlines three circumstances for an attorney’s review of a potential juror’s available data, which include:
This opinion reminds attorneys to read social media according to the terms of the agreement, and automatic subscriber notifications and information change frequently and without notice. The one issue that the rules touched on was that an attorney must notify the court of knowledge gained through social media if there may be misconduct by a juror.
There has been one revision to the ABA Ethics 2000 Commission, and this was after an extensive review of the Model Rules. Model Rule 3.3, adopted by the ABA House of Delegates from the commission’s recommendation as a new subsection. This subsection (b) involves an attorney’s obligation to notify the court if a potential juror or juror has behaved with fraudulent or criminal behavior. The intent was to include “improper conduct,” which is lesser wrongdoing by the potential juror or juror that the Standing Committee stated in the Formal Opinion was not later included.
Model Rule 3.3. (b) outlines that lawyers finding information that a juror or potential juror violated court instructions on the internet may require the attorney to inform the court of the violation. As seen above, jury mining is wrought with duties and obligations that must be strictly adhered to by all parties.
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Michael Ehline
Michael Ehline is an inactive U.S. Marine and world famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of the largest motorcycle accident settlements in U.S. History. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves in being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride, and a a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.
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