Ethics in Brief: Social Media and Juror Privacy
By: Edward J. McIntyre
Lawyers representing clients about to face a jury need to know as much as possible about potential jurors so they can intelligently decide whom to excuse and whom to risk having serve.
An obvious research tool in our social media crazed society is what potential jurors post about themselves on LinkedIn.
The American Bar Association Opinion
The American Bar Association issued an ethics opinion—Formal Opinion 466 (2014)—that addressed the issue. It concluded that “a lawyer may review a juror’s or potential juror’s internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.” The opinion stresses both the strong public policy in identifying jurors who might be tainted by improper bias or prejudice as well as the equally strong public policy preventing jurors from being approached ex parte by the parties to the case or their lawyers or other agents. The opinion specifically identified LinkedIn, among other social media platforms, as a ripe source of information. So, where did the opinion draw the line?
The ABA opinion focused on Model Rule 3.5(b) which prohibits communicating ex parte with, among others, a juror during a proceeding unless law or a court order authorizes it. California Rule of Professional Conduct 3.5(d) (“CRP“), premised on Rule 3.5(b), prohibits communicating with anyone a lawyer knows to be a member of the venire from which the jury of a case will be selected; CRP rules 3.5(e) and 3.5(f) prohibit communicating directly or indirectly with a juror, if the lawyer is connected with the case, or about the case if the lawyer is not connected with the case. The rationale for the ABA reaching that conclusion is its statement that the mere act of observing what is open to the public does not constitute communication in violation of Model rule 3.5(b).[1][CB1]
The opinion concludes that passive review of a juror’s social media without making an access request, and of which the juror is unaware, does not violate ABA Model Rule 3.5(b), with the caveat: unless a court order prohibits it. Addressing the issue of social media platforms that send a notice to the owner that a lawyer has reviewed the juror’s information is not, however, communication from the lawyer to the juror.[2] Rather, according to the opinion, the platform, not the lawyer, is communicating with the juror based on a technical feature of the platform.
Judge Orrick’s Opinion
In an order filed October 28, 2025, in a case in the District Court for the Northern District of California, Contour IP Holding, LLC v. Gopro, Inc., Judge Orrick imposed a $10,000 sanction on the Alston & Bird, LLP firm because an investigator whom the firm’s jury consultant hired used an “anonymous” search on LinkedIn to access publicly available information of prospective jurors. The investigator then provided the fruits of the research to Alston & Bird.
Judge Orrick’s standing order prohibits searches of LinkedIn, even “anonymous” searches, because of the automatic notification setting that LinkedIn employs. The prospective juror is still notified because of the investigator’s search, even if the juror cannot tell who was viewing the juror’s information.
As Judge Orrick stated, he uses a jury questionnaire he provides to the lawyers in advance of trial with the benefit of the quantity and quality of information available in jury selection. Questionnaire responses disclose issues the lawyers can address in voir dire and streamline questioning. Further, because they provide the names of prospective jurors before trial, the questionnaires allow the lawyers to do some publicly available research on the jurors who may decide the case.
Judge Orrick’s standing order expressly prohibits using LinkedIn to conduct any research on any prospective juror. That is because LinkedIn can notify a prospective juror of the identify of anyone using the platform to view the prospective juror’s profile or other information or notifies the prospective juror an “anonymous” person viewed the profile. In Judge Orrick’s opinion those notifications constitute “contact” with the prospective juror in violation of rule 3.5(d). The standing order applies this restriction to any other form of social media with this or a similar feature.[3]
Accordingly, Alston & Bird violated Judge Orrick’s standing order; it did not inform its jury consultant of the obligation to comply with the standing order; the investigator was unaware of it. When an Alston & Bird lawyer realized the firm had violated the standing order, she provided the information the firm received to opposing counsel—so that firm would not be disadvantaged by not having information her firm possessed—she did not share it with the partner at Alston & Bird who was conducting voir dire, and she informed the court at her first opportunity before jury selection. The court stated it appreciated that the Alston & Bird lawyer did her best to rectify the violation by prompt disclosure. Nonetheless, the court imposed the $10,000 sanction—a penalty more modest, the order stated, than what the court had originally contemplated—because the firm had violated his standing order—a potential violation of Business and Professions Code section 6103—and failed adequately to supervise its consultant, as rule 5.3(b) requires.
Judge Orrick’s order concludes: “Counsel in every case before me are forewarned against violations of the Standing Order. No one should take as precedent the modest nature of the sanction in this particular case.” We are now warned.
[1] California’s Committee on Professional Responsibility and Conduct (COPRAC) has not issued an opinion directly on point. The San Diego County Bar Association’s Legal Ethics Committee issued an opinion—Formal Opinion 2011-2—that addresses using social media to “friend” two prospective witnesses, addressing the “no contact” provision of former rule 2-100, now rule 4.2.
[2] Two New York opinions reached the opposite conclusion. The Association of the Bar of the City of New York Committee on Professional Ethics, Formal opinion 2012-2 and the New Your County Lawyers’ Association Committee on Professional Ethics, Formal Opinion 743.
[3] Standing Order Regarding Juror Questionnaires and Social Media Research, at p. 1.
[CB1]Ed, the rationale does not appear to follow from the prior discussion. I read the rules and comments and did not see anything to suggest or qualify the rationale.
