Social Media Policies for Character and Fitness Evaluations

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 8 No. 2

Washington Journal of Law, Technology and Arts Volume 8, Issue 2Winter 2012

Social Media Policies for Character and Fitness Evaluations

Jessica Belle(fn*) © Jessica Belle

Abstract

In 2009, Florida became the first U.S. jurisdiction to articulate a Character and Fitness Evaluation (CFE) policy of examining the social media accounts of bar applicants who had demonstrated a history of questionable conduct such as substance abuse or seeking to violently overthrow the U.S. government. This policy may allow access to otherwise legally inaccessible data, which creates a risk of the bar unlawfully considering information protected by applicants' constitutional rights. Over the past 60 years, the U.S. Supreme Court has split on whether bar organizations may constitutionally deny bar admission to applicants who refuse to answer certain questions on this basis. This Article proposes that bars should publish (1) the types of traits an applicant must demonstrate to succeed on a CFE; (2) the types of conduct that may warrant further inquiry and eventually lead to an unsuccessful CFE; (3) criteria for evaluating suspect conduct; and (4) the types of information gathered on applicants' social media accounts that may not be considered by the bar.

Table of Contents

Introduction .................................................................................. 108

I. Background ........................................................................... 109

A. Predicting Law Students' Use of Social Media Based on Existing Studies of Medical Students' Use of Social Media .................................................................... 110

B. Character and Fitness Evaluations ................................... 111

II. Florida's Social Media Policy .............................................. 112

A. Florida's Character and Fitness Evaluation ..................... 113

B. Florida's Social Media Policy .......................................... 113

C. Other States' Social Media Policies ................................. 114

III. Supreme Court Jurisprudence of Character and Fitness Evaluations ........................................................................... 114

A. Black Letter Law ............................................................. 115

B. Applying Past Jurisprudence to Social Media ................. 116

IV. Current Proposals and a New Proposal for Bar Policies on Social Media in CFEs ...................................................... 118

A. Current Scholarship ......................................................... 118

B. A Proposal for Clarity in CFE Standards and Constitutional Social Media Policies ............................... 120

V. Conclusion ............................................................................ 121

Practice Pointers ........................................................................... 122

Introduction

The increasing use of social media such as Facebook and Twitter by the legal community poses ethical questions for the state bar associations that monitor lawyer conduct. Members of the legal community have written extensively on the expectations for professional use of social media by attorneys and warned that violation of rules of professional conduct through online behavior will result in disciplinary actions.(fn1) However, bar associations have generally not articulated how the online conduct of candidates seeking admission to the bar will impact admission decisions.

In 2009, Florida became the first jurisdiction to announce a policy of requesting access to a bar applicant's social media accounts when a candidate demonstrated questionable moral conduct. Commentators have split on the amount and types of information that a bar association should and may constitutionally consider from an applicant's social media accounts.

This Article proposes applicants' constitutional rights will be best protected by published character and fitness evaluation (CFE) policies regarding social media that specify what information bar examiners may not consider. Section I will provide a brief background on the current use of social media as well as the nature of CFEs. Section II will explore the Florida State Bar Association's character and fitness evaluation as well as the State's social media policy. Section III will discuss U.S. Supreme Court jurisprudence on CFEs and how it could be applied to CFE social media policies. Finally, Section IV will critique current arguments regarding CFE social media policies and propose a new standard.

I. Background

The Internet has become a way of life and people increasingly use social media to connect with friends, network, and create a professional identity. As many as 75 percent of American adults between the ages of 18 and 24 have profiles on social media sites, while 57 percent of those between 25 and 34 use social networking sites.(fn2)

Attorneys are increasingly establishing a presence for themselves online: firms have websites and social media accounts; online organizations rank and evaluate attorneys; and individual attorneys use social media activity for both personal and professional purposes.(fn3) Like attorneys, law students also engage with social media.

A. Predicting Law Students' Use of Social Media Based on Existing Studies of Medical Students' Use of Social Media

Although numerous articles and disciplinary cases discuss the types of unprofessional conduct exhibited by attorneys through social media, there are no studies demonstrating the types of unprofessional online conduct exhibited by law students. However, various studies have examined the types of unprofessional conduct exhibited by medical students on their social media accounts.(fn4) Medical students, like law students, are expected to adhere to their profession's ethical code even as students. With respect to social behavior, there is not reason to expect law students to behave differently than medical students. Therefore, bar associations will likely discover similar types of unprofessional conduct as those currently found on medical students' social media accounts.

A 2009 study of the use of social media by medical students indicated that 60 percent of medical schools studied had incidents of unprofessional online conduct.(fn5) The study revealed that: 13 percent of schools reported violations of patient confidentiality, 52 percent of schools reported use of profanity, 48 percent reported discriminatory language, 39 percent reported depictions of intoxication, and 38 percent had incidents of sexually suggestive material.(fn6) In response to such behaviors, 30 of 45 schools reporting incidents gave informal warnings, while three dismissed students for their online behavior.(fn7) Other studies reached similar conclusions.(fn8) Though law students' online behavior will not exactly resemble that of medical students, these studies suggest the types of unprofessional conduct that law students may engage in through their social media accounts. It seems strange that bar organizations do not even have a...