18.09. Actions that Compromise the Impartiality of Tribunal [Rule 3.5]

It is illegal for a lawyer to improperly interfere with a tribunal and the various actors in the decision making process.  Rule 3.5 makes it clear that a lawyer who interferes with a tribunal is subject to discipline by the bar as well as the criminal justice system.

Improperly influences judge or juror

A lawyer must not “seek to influence a judge, juror, prospective juror or other official” in a manner that is prohibited by law.[1]  It is the job of the lawyer to try to influence through the use of advocacy, but it is unethical to attempt to influence outside the bounds of traditional advocacy.

Improper ex parte communications

Ex parte communications are communications where only one side of a dispute is present.  It is unethical for a lawyer to talk ex parte (outside the official court proceeding) with a judge, juror, perspective juror, or other court official unless authorized by law or court order.[2]   

Linda Lawyer has a jury trial coming up in a month.  The court administrator has provided her with a list of the potential jurors.  To research each potential juror Linda searches Facebook.  One of the jurors (Jenny) has a publicly available page and Lawyer reviews the pages and finds pictures of Jenny with the defendant.  A second juror (James) has his Facebook page on the highest security settings and therefore Linda can only access very basic information about James.  Linda has sent a “friend” request to James so she can view more information on his page.  Has Lawyer acted unethically in either of these situations? [ABA Formal Op. 466 (April 24, 2014)]

No with regard to Jenny; Yes with regard to James.  A lawyer may look at a potential juror’s publicly available social media presence without engaging in improper ex parte communications with a juror.  The rationale is that looking at publicly available information is the equivalent of driving by the juror’s house – which a lawyer could do. With regard to James however, this would be an ex parte communication with a juror that would be improper.  This would be the equivalent of the lawyer talking to the juror.  There is also a middle situation – where the information on the social media site is publicly available, but the website informs the juror that the lawyer has visited the site.  That also is not unethical.  The ABA Opinion says that is similar to a lawyer driving by the juror’s house and the juror’s neighbor telling the juror that the lawyer drove by.

Communication with jurors after discharged

After jurors are discharged from service, a lawyer may speak to a juror (or prospective juror) unless:  (1) the communication is prohibited by law or court order; (2) the juror has made it known to the lawyer that the lawyer does not want to be communicated; or (3) the lawyer wishes to engage in misrepresentation, coercion, duress, or harassment in the communication.[3]

[1] ABA Rule 3.5(a).

[2] ABA Rule 3.5(b).

[3] ABA Rule 3.5(c).