Lawyers "step in It" Through Social Media Incompetence
| Publication year | 2010 |
| Citation | Vol. 2010 No. 06 |
Summer 2010-#3. Lawyers "Step in It" Through Social Media Incompetence
Volume 36, No. 2
Summer 2010
We often bemoan that lawyers don't take seriously their duty to understand e-discovery. Today we tackle another subject that attorneys seem to avoid, often to their peril as they step on virtual cow pies. Social media is so pervasive that ignoring its legal implications is (we think) simple incompetence. Now that the active Facebook user population is more than 500 million globally (more than the U.S. population), it is clear that the social media phenomenon is here to stay.
Not only do lawyers need to understand the up-sides and down-sides of social media for their clients-they need to understand the interplay between their ethical duties and their own use of social media.
Some examples:
1. Suppose a divorce client comes to you and says she is sure there is wonderful evidence on her spouse's Facebook page to assist in her child custody dispute. You suggest getting a third party to "friend" the husband, right? No, no, and again no, but we've seen it happen. Attorneys cannot ethically be a party to a deception.
2. Recently, there has been a lot of buzz about LinkedIn recommendations. In many jurisdictions, you cannot have a client recommend The Law Office of Jane Doe by saying "Jane is the finest lawyer in the city." There is no objective basis on which to make that comparison so in many jurisdictions, including ours, you cannot have that recommendation on a site which you control-and clearly you control your LinkedIn page.
3. From North Carolina: A judge "friends" one of the counsel in a pending case. The two Facebook buddies begin to chat about the case, including querying whether one of the parties involved was having an affair. The judge also checked the website of the opposing party. For this, the judge earned a reprimand from the North Carolina Judicial Standards Commission.
4. A lawyer/blogger/juror in California had his law license suspended for forty-five days and was placed on two years' probation after he blogged about a trial while serving as a juror. He rather haplessly noted, "Nowhere do I recall the jury instructions mandating I can't post comments in my blog about the trial." Yeah, right. He also failed to disclose to the court that he was an...
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