ETH 2019-20/03
Ethics Committee Opinion #2019-20/03
New Hampshire Advisory Opinion
New Hampshire Bar Association
June 19, 2020
Juror
Investigation Using Social Media
ABSTRACT:
Under
Rule 3.5, a New Hampshire lawyer may review a juror’s
public social media presence online but may not contact the
juror and must avoid any notification that the juror’s
social media platform has been accessed by the lawyer. While
a lawyer must exercise care, a review of a juror’s
social media presence may be ethically required in providing
competent representation under Rule 1.1.
ANNOTATIONS:
Under
Rule 3.5, a lawyer may review the social media platforms of
jurors before and during trial but may not reach out to make
contact with the juror.
A
lawyer must avoid any communication with the juror, including
any automatic notification that his or her social media page
is being accessed by a lawyer on the case.
The
practice of reviewing a juror’s online presence is an
important part of current day trial work and in many
instances could be required in providing competent
representation. See N.H. Rule of Professional
Conduct Rule 1.1.
Juror
Investigation Using Social Media
A
competent lawyer in today’s culture of over-sharing on
social media will rightly consider when and how to research
jurors online. This research can be vital both before jury
selection and throughout the duration of trial. This opinion
addresses the ethical considerations in this area.
Our
starting point in analyzing the issue is Rule 3.5. The Rule
prohibits ex parte contact with a juror during a
proceeding unless specifically authorized by law or a court
order. See Rule 3.5 (a) and (b).[1] Note that this
prohibition is distinguished from contact with a juror
after the proceeding. See Rule 3.5 (c). An
access request through social media (friend request, request
to connect, etc.) sent by a lawyer to a juror is considered a
“communication” prohibited by the rule.
See “Lawyer Reviewing Jurors’ Internet
Presence”, ABA Formal Opinion 466. Finally, Rule 8.4
(a) extends these limitations to anyone acting on the
lawyer’s behalf, such as an investigator.
While
proactive communication, including a request for access to a
social media page...
