Attorneys using social media for jury selection must navigate a landscape shaped by evolving ethical standards, judicial orders, and notable sanctions. The recent $10,000 fine against Alston & Bird LLP for LinkedIn research on a prospective juror in Contour IP Holding, LLC v. GoPro, Inc.,No. 17-cv-04738-WHO (N.D. Cal. Oct. 28, 2025)(Orrick, J.) illustrates these boundaries powerfully.
The federal judge held that even “anonymous” LinkedIn searches were impermissible because the platform’s notification system effectively contacted the juror—a violation of local standing orders and ethical obligations to avoid any direct or indirect contact.
The judge stressed that “individual privacy has been eroded over the last thirty years,” but jurors should not lose their remaining privacy interests simply for performing civic duty.
Ethical Rules: ABA and Local Standards
The American Bar Association’s Formal Opinion 466 allows lawyers to research the public online profiles of prospective jurors but flatly forbids any requests for contact, “friending,” or other access requests. The Model Rules of Professional Conduct Rule 3.5 provide that lawyers cannot communicate with jury members except as authorized by law. However, the ABA does not consider an automated notification from a social platform as a ‘communication’ on its own—even if the attorney is aware the notification will be sent—while some local bars (notably New York City) consider knowledge of such a notification a violation. Compare ABA Formal Opinion 466 and NYC Bar Formal Opinion 2012-2. Thus, local court rules, standing orders, and even individual judge preferences add complexity—making strict compliance and advance review essential.
Other Court Decisions Limiting Social Media Research
Multiple courts have restricted or outright sanctioned improper online research. For example, in Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012), the Kentucky Supreme Court held Facebook friend requests or contacts would warrant sanctions and could jeopardize verdicts.
Essential Practice Guidance
Attorneys are encouraged to:
- Rigorously follow local judges’ standing orders before beginning any digital search.
- Preserve a clear log of research steps and avoid any action that might notify a juror.
- Consult both ABA ethics guidance and local/state bar opinions.
- Use only passive methods to access publicly available social media data, avoiding platforms that generate notifications.
- Disclose any relevant online findings if requested by the court.
Navigating these ethical and legal boundaries is now integral to modern jury selection. The rules and case law continue to evolve, so ongoing vigilance is required.
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