ABA Says Social Media Snooping is Fair Game for Lawyers

For years now, Davis Law Group has attempted to warn personal injury victims across Washington state about the potential fallout that can result from sharing certain information on social media, and how this can significantly decrease the chances of a plaintiff experiencing a successful resolution to their case.

There have been general case studies performed and analyzed on this subject, as well as some real-world examples; in one of the more publicized cases, a teenager in Florida violated the confidentiality terms of her father’s settlement agreement which resulted in the entire $80,000 settlement being thrown out.

On Sunday, the Associated Press reported the American Bar Association (ABA) had determined it is ethical for attorneys to search for and monitor the social media profiles of any jurors who have been called for jury service or who are currently serving on a jury for a given case.

The ABA added that lawyers should limit their online activities to simply monitoring publicly-available information and social media posts, and warned against actively “following” or “friend-requesting” jurors or taking any other action that invades jurors’ online privacy.

“It’s like any other publicly available information,” said Donald Lundberg, an attorney in Indiana who also serves on the ABA ethics committee.

Does ABA's Ruling Actually Change Anything?

Today, a majority of judges across the United States will instruct juries to refrain from publishing any information about a case or trial on social media. In many cases, jurors will even be instructed to refrain from using social media in any capacity until the conclusion of the trial.

Because jurors’ online activity can shed some light on their own personal feelings about a given case or trial – especially if the juror is unaware that the post is public record – attorneys across the country have begun monitoring social media sites to ensure jurors are abiding by judges’ instructions.

With the use of social media networks being so widespread across the United States, using these websites to monitor jurors’ online activity has been commonplace for some time now. But with the ABA finally making an official ruling on the issue, this practice is likely to become even more popular for law firms throughout the nation.

Complex Issues Still Need to be Clarified

One of the related issues bar associations nationwide will continue to address is whether jurors’ knowledge of being monitored presents any ethics complications. Some social media networks, such as LinkedIn, tell a user when their profile has been searched for or viewed by someone else. In some cases, the user may even be able to view exactly who looked them up.

Legal experts are concerned that a juror’s opinion about a case could be affected if the juror was explicitly notified that an attorney involved in a particular case had viewed their online profile. The ABA ultimately decided that LinkedIn searches were ethically sound, but that reportedly contradicts a ruling made by the New York City Bar Association in 2010 that determined a notification to a juror about an online search would constitute unauthorized communication.

It goes without saying that individual state bar associations have some work to do as far as clarifying the specifics on this issue, but the ABA has at least set the table by addressing this 21st Century concern that will continue to affect lawyers and their clients throughout the world.

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