The Standing Committee on Ethics and Professional Responsibility has advised that:
A lawyer may, unless limited by law or court order, review a potential juror’s or juror’s Internet presence, which may include postings by the potential juror or juror in advance of and/or during a trial, but a lawyer may not communicate directly or through another with a potential juror or juror. Which means that:
A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media.
The Committee strongly encourages lawyers and judges to discuss the Court’s expectations concerning lawyers’ review of juror presence on the Internet. A court order, whether in the form of a local rule, a standing order, or a case management order in a particular matter, will, in addition to the applicable Rules of Professional Conduct, govern the conduct of counsel. “Equally important, judges should consider advising jurors during the orientation process that their backgrounds will be of interest to the litigants and that the lawyers in the case may investigate their backgrounds, including review of their social media and websites. If a judge believes it to be necessary, under the circumstances of a particular matter, to limit lawyers’ review of juror websites and social media, including on social media networks where it is possible or likely that the jurors will be notified that their social media is being viewed, the judge should formally instruct the lawyers in the case concerning the court’s expectations.”
The Committee also addressed an attorney’s obligations upon the discovery of jury misconduct. In particular, a lawyer must take remedial measures under Rule 3.3(b) upon the discovery of conduct that is “fraudulent” or “criminal”. The Committee notes, in this regard: “While any Internet postings about the case by a juror during trial may violate court instructions, the obligation of a lawyer to take action will depend on the lawyer’s assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes. For example, 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. A lawyer’s affirmative duty to act is triggered only when the juror’s known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions. The materiality of juror Internet communications to the integrity of the trial will likely be a consideration in determining whether the juror has acted criminally or fraudulently. The remedial duty flowing from known criminal or fraudulent juror conduct is triggered by knowledge of the conduct and is not preempted by a lawyer’s belief that the court will not choose to address the conduct as a crime or fraud.”
ABA Formal Opinion No. 466 (April 24, 2014).