Recent Sanctions Highlight the Need for Clear Protocols
An AmLaw 50 firm recently acknowledged violating—through a litigation services vendor—a standing order regarding juror background research. The resulting sanction of $10,000 and industry press as well as social media coverage of the vendor’s misstep serve as a critical reminder that the rules governing attorney investigation of potential jurors vary significantly by jurisdiction—and sometimes by individual judge. As social media participation has become ubiquitous, the question of what constitutes permissible research versus improper communication grows increasingly complex. Expectations of the lengths attorneys can and should go to in efforts to identify and weed out biased jurors are also changing. As technology transforms what is possible in juror research, the gap between available tools and permissible practices continues to widen. If generative AI can immediately provide detailed summaries of the viewpoints and beliefs of political candidates based on their public statements from a plethora of social media posts, why shouldn’t the same be available for prospective jurors?
The Core Ethical Framework
A fundamental principle remains consistent across most jurisdictions: attorneys may view jurors’ publicly available social media profiles, provided there is no communication with the juror. This includes communication by the attorney or their agents (including generative artificial intelligence tools).
Where Judges Diverge: The LinkedIn Problem
The controversy intensifies when we examine LinkedIn and similar platforms that notify users when their profiles are viewed. Judge William Orrick in the Northern District of California has taken a notably restrictive stance, prohibiting even anonymous viewing of juror profiles on LinkedIn.[1] His concern extends beyond traditional privacy considerations—he appears focused on preventing jurors from learning they are under any form of investigation, regardless of the source.
Notably, this reasoning dovetails with that of Judge Lewis Kaplan’s orders that effectively rendered social media investigation of prospective jurors impossible with anonymous juries in the 2023[2] and 2024[3] E. Jean Carroll v. Donald J. Trump trials in the Southern District of New York. Judge Kaplan sought to insulate jurors from even a subjective concern that attorneys’ investigations of jurors could escalate into intimidation or harassment by third parties, denying even the parties’ legal teams’ access to the names of prospective jurors.[4]
Competing Interpretations
The NYC Bar Association[5] shares some of Judge Orrick’s caution, defining impermissible communication as any instance where the juror “learn[s] of the attorney’s viewing or attempted viewing.” This would presumably include LinkedIn notifications that could be attributed to the lawyer or those working for them, even if the viewer appeared anonymous to the prospective juror on the platform. The New York County Lawyers Association[6] similarly takes the view that inadvertent contact caused by an automatic notification may be an ethical violation.
However, other authorities have adopted a more permissible approach. The ABA’s guidance[7] suggests that automatically generated platform notifications do not constitute improper communication—unless they specifically identify the attorney to the juror. The Colorado bar[8] and the District of Columbia bar[9] have explicitly adopted this more lenient standard. Ethics committees in both jurisdictions take the position that automatic notifications by social media networks that a user’s public posts have been viewed do not constitute communication between the attorney and prospective juror.
Likewise, the New York State Bar Association’s social media ethics guidelines[10] state that passive viewing of public profiles is generally permissible. Notably, the New York State Bar Association’s commentary acknowledges that attorneys can use LinkedIn’s anonymous browsing mode or log out entirely before viewing profiles. How much information is accessible under these conditions can vary based on the subscription status of users. This practical solution suggests the primary concern is not investigation itself, or even a juror’s knowledge of their social media activity being observed, but rather jurors becoming aware that a specific attorney is scrutinizing them.
Practical Implications for Trial Teams
The sanctions debacle before Judge Orrick underscores several critical lessons:
- Know Your Venue. Standing orders regarding juror research vary dramatically. What’s permissible in one courthouse or before one judge may violate another’s explicit rules. Always review local rules and standing orders before conducting any juror research.
- Understand the Judge. Some judges adopt restrictive positions that exceed their jurisdiction’s general ethical guidelines. Research the presiding judge’s prior rulings or orders on juror investigation and understand the concerns they address.
- Document Search Protocols. Establish clear, written procedures for juror research that comply with the most restrictive interpretation applicable to your case. Train all team members and vendors on these protocols prior to jury selection.
- Consider the Platform. LinkedIn presents unique challenges due to its notification features. Even “anonymous” viewing may generate notifications that concern jurors. Consider alternative research methods or ensure complete anonymity through logged-out viewing. Recognize that logged-out viewing may violate rules in your jurisdiction.
- Focus on Public Information. Attempts to access non-public information (friend requests, follows, connection requests) universally constitute improper communication. Restrict research to publicly available content only.
The Broader Trend
Judge Orrick’s expansive interpretation—that any knowledge of being investigated could intimidate jurors—represents a significant departure from traditional privacy-based analyses. If this reasoning gains traction, it could substantially restrict legitimate juror research, even when no communication occurs and no privacy right is violated.
This approach, if it spreads to other judges, will likely collide with attorneys’ duty to uncover juror bias as part of zealously advocating for their clients. Attorneys need information in order to challenge biased jurors. A judge’s searching inquiry, through voir dire, cannot sufficiently arm counsel to confront a prospective juror whose social media posts might provide information contrary to his or her statements to the court. Thus, attorneys undertaking a diligent effort to uncover bias reflected by public social media statements must act carefully but decisively. Leveraging experienced jury consultants who are sensitive to counsel’s duties and constraints can help chart an ethical and effective path.
Trial teams must remain vigilant as these standards continue to evolve. The intersection of technology, ethics, and jury selection will undoubtedly generate additional guidance—and additional sanctions for those who fail to adapt.
For information about compliant juror research services and protocols, contact inquire@DOAR.com.
[1] Standing Order, Effective Aug. 23, 2023.
[2] Mem. Op. Re Anonymous Jury, Dkt. No. 94. E. Jean Carroll v. Donald J. Trump, 22 Civ. 10016 (LAK) (S.D.N.Y. Mar. 23, 2023).
[3] Order, Dkt. No. 222, E. Jean Carroll v. Donald J. Trump, 20 Civ. 7311 (LAK) (S.D.N.Y. Nov. 3, 2023).
[4] Mem. & Order Denying Joint Mot. for Parties Legal Teams to Have Access to Juror Names, Dkt. No. 105, at 3-4, Carroll, 22 Civ. 10016 (LAK) (S.D.N.Y. Apr. 10, 2023).
[5] NYC Bar Association, Formal Opinion 2012-2: Jury Research and Social Media.
[6] NYCLA Committee on Professional Ethics, Formal Opinion No. 743
[7] ABA Committee on Ethics and Professional Responsibility, Formal Opinion No. 466.
[8] Colorado Bar, Ethics Opinion 127.
[9] District of Columbia Bar, Ethics Opinion 371.
[10] NYSBA Social Media Ethics Guideline No. 6.B.
