Formal Opinion 466 recognizes the growing Internet presence of individuals through electronic social media (ESM) or websites, and it makes the distinction between public and private material. It specifically addresses three levels of lawyer review of juror Internet presence:
- Passive lawyer review of a juror’s website or ESM that is available without making an access request where the juror is unaware that a website or ESM has been reviewed;
- Active lawyer review where the lawyer requests access to the juror’s ESM; and
- Passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer.
The opinion would allow a lawyer to make a passive review of the juror’s public presence on the Internet, but he or she may not actively communicate with the juror. Requesting access to a private area on a juror’s electronic social media page, such as Facebook or LinkedIn, would be considered communication within this framework and would be the type of ex parte communication prohibited by Model Rule 3.5(b).
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.
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