Judge M. Margaret McKeown, of the US Court of Appeals for the Ninth Circuit, has a dual reputation as both a brilliant legal scholar and a great storyteller. During her keynote address at the recent Federal Bar Conference, she readily displayed both talents as she discussed social networking.
One of the highlights of her talk was the disclosure of an important new “jury instruction,” in the form of a New Yorker cartoon, shown to the audience on a “big screen.” [The cartoon shows a stern judge admonishing the jury in a courtroom.]
“The jury is instructed to disregard my last tweet:
OMG he is soooooo guilty!”
As we all know, there are major differences between actual friends and “Facebook friends.” Judge McKeown reminded us of an old saying, that they’re as different as “leather and pleather.” Facebook friends, unlike most real friends, can cause a lot of legal trouble.
Judge McKeown pointed out that the development of social networking has parallels with other technological innovations, such as the telegraph. She described the telegraph as the “Victorian internet.” Anticipating Al Gore, the telegraph was described in its day as the “highway of thought.”
As today, in the late 19th century, many people believed that the telegraph would solve a host of social problems. As today, the government debated whether to tax or regulate the new technology.
There are obvious differences between the telegraph and internet. The cost per word of using the telegraph, in today’s dollars, was $1,000 per word. It is now much less than 1¢ per word to use the internet. In 1993, three were only 50 websites. Now there are 15 billion web pages, at last count. The basic point is there are now new countless opportunities to communicate on the internet, and countless ways to mess up.
Trouble can be avoided by always remembering the Bar rules and by using common sense. For example:
• Have you identified your firm in your Facebook profile to persons that may not agree with your political views?
• Have you accidentally revealed confidential information?
• Does what you say reflect poorly on a party you represent, your firm, or the justice system?
• Have you or your firm posted a comment that detracts from the dignity of the legal profession or the court?
It all comes back to good manners and ethics. Don’t post in anger.
Keeping things light, she displayed another cartoon on the big screen – this time showing a job interview – “Your resume is great but your Facebook page is weak.”
Judge McKeown quickly pivoted to confidentiality issues. You can’t leak confidential information on Facebook, or anywhere else, under any circumstances. Is your trial blog or Facebook post appropriate? One “careless tweet” can ruin a judicial or legal career.
Issues of dignity can also arise. For example, a judicial clerk identified himself as the “tickle master” in electronic communications. The clerk’s judge was not amused.
Privacy is also at issue. The amount of information on your Facebook page that is now private by default is tiny compared to when it first started. This information can be accessed by many people. With this in mind, think carefully before joining a controversial protest group. Some forms of social commentary may be inappropriate for attorneys.
Can a judge befriend a lawyer on Facebook? Florida says no. Kentucky gives a qualified yes, but says “be careful.”
What about internet investigations? Is it ethical to Google applicants, or view their Facebook page, without informing them? As you “stalk” potential employees on Facebook, bear in mind that there are many questions you cannot ask, and areas you cannot delve into, in an interview setting. If you decline an applicant after checking their Facebook profile, and the profile information reveals prohibited information, you may have a big problem in a future discrimination suit.
A panel discussion was then held.
• What’s positive about social networking? “It’s a great marketing tool.”
• Are Facebook pages and other social networking issues discoverable? “You need to establish a high degree of relevance before the privacy interests can be breached,” according to most commentators. Regardless, your client shouldn’t blab on Facebook about the case.
• What if a client deletes an embarrassing admission on Facebook? “There may be spoliation issues.” It may be a good idea to discuss with our clients the issue of communication and confidentiality with respect to social networking.
• Facebook, to the extent it helps with investigations, presents hidden dilemmas. Judges and jurors are prohibited from doing independent factual research on the internet and should not be checking out the facebook pages of witnesses or parties. Most panelists agreed that we could talk to witnesses on Facebook, so long as we did not use deceptive means. It’s just like the phone, according to one panelist.
• Another issue is legal advice. Advice on Facebook may come back to haunt you. It is akin to legal commentary [ like this insufferable article] in a newspaper. Bad legal advice can be magnified in the large “echo chamber” of Facebook, [ or through distribution via Maine Lawyers Review] .
• Can you check out a job applicant on Facebook? As with other sources, be honest. It may be a good idea to tell the applicant what the policy is, i.e. that you may access their Facebook page as part of your policy. You may also want to consider firm policies with respect to social networking and what you can and can’t do.
• If one of the purposes of the firm website or Facebook page is to generate business clients, it may be a good idea to provide disclaimers when advice is given, so no potential attorney/client relationship is formed. It’s never a good idea to give fact-specific legal advice. It is not privileged. One commentator suggested having all persons on your website click a box to acknowledge that no attorney/client relationship is formed.
• Facebook amplifies and repeats legal advice many times, in unforeseen contexts and ways. That’s the danger. Act as if everything that is posted will be on the front page of the New York Times.
One last cartoon was shown by the good Judge, as the seminar ended. It showed a herd of buffalo with cell phones. “I love the convenience, but the roaming charges are a killer.”
Tweet you later!