A Lawyer Can Have a Facebook Page

Oct 4th, 2009 | By Rex Gradeless | Category: Blogging, Facebook, Featured, LinkedIn, Social Media, Social Networking, Twitter, Web 2.0

One more legal blog drank the New York Times Social Media Fear Kool Aid [link redacted] so now we’re posting about this.

(Alternate title: New York Times Shoots the Messenger in Fact Finding Failure)

Recently, the New York Times published an article related to social media use conflicting with the rules of the bar. The article concluded that lawyers face special risks when engaging in social media use.

Admittedly, committing malpractice using social media technologies has become a central concern by those within the legal profession. Using these new technologies within the framework of long-established ethical rules can create hesitation and uneasiness by lawyers who want to do the right thing. The wild wild west is often terrifying for any traveler. But, like any good navigator will tell you, arming yourself with the best information will increase your odds of survival.

Here’s where the New York Times failed. They did not arm themselves with relevant facts about the current state of social media use within the legal profession.

A simple demonstration of how the New York Times did not arm themselves with relevant facts can be seen by the dates each case they mentioned occurred. The New York Times article mentioned the following cases:

• Sean Conway, a Florida lawyer, was steamed by a judge’s conduct during a trial. After not allowing for much cooling time, Sean went home, blogged about the experience, calling the judge an “Evil, Unfair Witch.” (Given public reprimand, still licensed to practice law in FL. The judge was later investigated for misconduct in another case.)

• Kristine Peshek, a Illinois lawyer, allegedly revealed the identities of her clients with disparaging statements.

• Frank Wilson, a California lawyer, caused a criminal conviction to be set aside after blogging about the case, and not telling the court he was a lawyer, as a jury member. (Disputed as to whether Wilson was ever asked if he was a lawyer during questioning. Wilson, as was the case then, does not practice law.)

• Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in California, was investigated for off-color humor that was accessible on his family’s Web server. (Cleared of wrongdoing)

• A Texas lawyer, after getting a trial delayed because of a death in the family, got in trouble by Judge Susan Criss when he posted inappropriate things on his Facebook page during the week of the funeral. (Anecdote from a judge, cannot be verified)

After pointing out these isolated cases, the New York Times cautioned the legal community:

“But the State Supreme Court ultimately accepted Mr. Conway’s earlier reprimand agreement with the bar, which had argued in its brief to the court that the online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system, and so the statements “fail as protected free speech under the First Amendment.””

Gee this sounds scary. I should probably not be doing anything online. Right?

How about some due diligence? Here’s what the New York Times failed to clearly explain. Based on super-duper top-secret court documents obtained exclusively by special elite Social Media Law Student forces (Actually, it took 3 minutes to find these public documents online):

· Sean Conway posted his comments on his blog on October 31, 2006 (3 years ago!)

Although blurry in this picture, the above court document can be found by searching for Sean Conway here. (or click image).

· Kristine Peshek posted on her blog in 2007 and 2008 (1.5 – 2 years ago!)

Although blurry in this picture, the above court document can be found by searching for Kristine Peshek here. (or click image).

· Frank Wilson was serving on the jury in 2006 (3 years ago!)

Although blurry in this picture, the above court document can be found by searching for Frank Wilson here. (or click image).

· Judge Alex Kozinski was cleared of any wrongdoing (1 year ago)

· The Texas lawyer posted on Facebook (unknown…most likely circa 2004 at this rate!)

This may have been the thought process in writing this article:

1) Let’s talk about the fears people have about using new social media technologies.

2) If we mention Twitter, Facebook, and blogging, people may actually read our article.

3) How about we dig up really old cases and mash them together: “look at how super crazy blogging makes you!”?

4) We can blame social media tools – despite the fact lawyers sometimes break ethical rules using email, regular mail, speaking, actions, non-actions, advertising, and in almost every other possible and conceivable way.

Then there’s this line from the New York times:

“Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.”

1) These were all done on personal blogs with one exception – the Judge’s anecdotal incident with Facebook.

2) Twitter wasn’t even invented in 2006 – when may of these events occurred. Let us repeat…TWITTER WAS NOT EVEN INVENTED IN 2006.

The ABA Journal followed this story stating:

“Chalk it up to the age of Facebook. Blogging lawyers and judges have landed in trouble with legal ethics regulators and judges, while one blogging lawyer ended up as a defendant in a defamation lawsuit.”

1) Lawyers making comments on their blogs has nothing to do with Facebook. I am not sure why Facebook gets blamed for the conduct of a few lawyers writing on their blogs?

2) Why is the device used to communicate blamed for the action? Would we blame the telephone, email, and our lips themselves for a lawyer breaking an ethical rule? No. You can’t “chalk it up to the age of Facebook” – “a lawyer’s poor judgment at the time” – yes.

So what are some other facts they could have included in their article?

• 50,000 legal professionals are already blogging both personally and professionally.

• Almost 1 million people in the legal profession are using social networking sites such as Facebook, MH-Connected, LinkedIn, and others to share information and manage their connections.

• 20,000 legal professionals are using Twitter and other microbloging services to collaborate, communicate, and meet new people.

With this in mind, maybe the New York Times should uncover some more recent cases. Maybe the New York Times could focus on systemic problems instead of a hodgepodge of isolated incidents occurring over 3 years ago? (This is in no way an endorsement of the conduct of these lawyers but rather a critique of journalistic due diligence.)

This is not to suggest social media use makes you immune from a state bar’s ethical rules of professional conduct. However, there’s no heightened and inherent risk stemming from using the tools themselves. As a member of the legal profession, you must always be on guard – no matter what the communication device looks like.

Finally, I’m certainly not suggesting the New York Times is drumming up old stories, appealing to contemporary fears, and slapping keywords such as “Twitter”, “Facebook”, and “blogs” to their articles at a time when print media is on the verge of extinction. This is not as if their very existence is dependent on either adapting to new social media technologies or hoping to extinguish social media technology altogether. Promise.

New York Times: Next time find more relevant cases before shooting the messenger known as social media technology.

Lawyers: Create a Facebook page.

Tags: Facebook, legal ethics, new york times, Social Media, Web 2.0

13 comments
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Tom October 5th, 2009 4:10 am :
Rex, although I agree with most of your post, and believe the reporter should have spent some time focusing on the positive aspects of social networking for lawyers, I think it’s too simplistic to say “there’s no heightened and inherent risk stemming from using the tools themselves.” One of the things that makes all of these social media tools – blogs, Facebook, Twitter – so popular is their ease of use. It’s incredibly easy to instantly post something online, often before a person’s “stupid filter” has had time to stop them from posting something regrettable. I’ve read several studies that demonstrate how people (not just lawyers) are very different in email communications as compared to writing a letter – they are more likely to click Send without really paying attention to what they’ve said. I think the same can be said about social media tools – as I’ve stated elsewhere, I’ve seen people Re-Tweet information on Twitter without even bothering to find out if it were true.

It may not be the most politically correct analogy, but when I read your post, I was reminded of the old phrase that gets brought up when gun control is discussed: “guns don’t kill people – people kill people.” Whether or not you agree with this statement, I wouldn’t advise everyone to just “go out and get a gun,” without helping them learn how to use the gun in a safe way. So instead of saying “Lawyers: Create a Facebook page,” I would say “Lawyers: create a Facebook page, and here are the things you need to think about so you don’t get in trouble using that Facebook page.”

[Reply]
Rex Gradeless Reply:
October 5th, 2009 at 10:39 am
Point well taken Tom.

Originally I had: “Lawyers: Create a Facebook page and be good.” Then I realized I would need to explain what “be good” meant. Unfortunately, I would have sounded too much like a lawyer explaining the rules of professional conduct. Plus, as you know, the rules differ slightly from state to state. Thus, I went with a more simple version.

[Reply]
Jessica Dobias Reply:
October 5th, 2009 at 12:50 pm
Tom are you from Texas? I’m from Texas – born and raised.

As someone who grew up around guns and Facebook – I can say those analogies aren’t quite the same. I think Rex is right, lawyers know the Rules of Ethics – we are required to take a whole test devoted to ethics. Maybe common sense should reign supreme in this instance?

Facebook doesn’t make people stupid, no more than owning a gun makes someone stupid. But owning a gun requires the owner acknowledge and consent to the laws that govern his or her gun use. Facebook does not require such harsh rules and inevitably is an open platform for sharing information, connecting with friends and expressing oneself.

Lawyers should have enough wits to make judgment calls on when it’s appropriate to say x, y, or z on Facebook and when it’s in violation of the Rules of Ethics. If they can’t do that, maybe they shouldn’t be lawyers in the first place.

[Reply]
Rex Gradeless Reply:
October 5th, 2009 at 1:01 pm
Good people do sometimes make mistakes.

Tom Mighell Reply:
October 6th, 2009 at 9:05 pm
Jessica, I was also born and raised in Texas – my whole time in Dallas, except for undergrad and law school in Austin.

I wasn’t actually talking about the rules of ethics when I posted my reply. Of course, lawyers are all expected to know the rules, and different rules will apply depending upon the state in which the lawyer lives.

I was indeed talking about common sense, but even more I was talking about professionalism. I don’t think Facebook (or any other social media tool) can make a person stupid, but I certainly think it can make a person lazy, just like any other form of technology with a low barrier of entry. I posted a while back (“Social Media Attention Deficit Disorder,” http://bit.ly/12v1AM) about how easy social media makes it for people to post something on the internet without sourcing it or bothering to check the facts. I’m only arguing for people to be smart about what they’re doing online.

It’s more than just professionalism, though – it’s also an understanding of the social media technology that you’re using. One of the ugly truths is the fastest-growing demographic of Facebook adopters lately – those somewhere between 45-65 or thereabouts – know less about technology than younger generations (there, I said it). For example, how many of the lawyers flocking to Facebook for business development purposes understand the benefits of creating separate “faces” – one for friends, and one for business? I’d argue not as many as younger, more web-savvy users. Some lawyers might not mind commingling personal and professional contacts, but how many know they even have the option?

So while I would certainly say, “get a Facebook page, and be good,” I would also say “be smart and professional about what you’re doing, and learn the technology you’re using.” Just reading all the great articles that are posted on this and other sites will go a long way to helping lawyers use these technologies in smart and professional ways.

Jessica Dobias Reply:
October 6th, 2009 at 9:38 pm
Tom,

You went to the University of Texas for Law School? I went to UT for undergrad. Hook ‘em Horns!

You are absolutely correct about the generational gap between Facebook user’s understanding of “separate faces”. I think its important to note that Facebook began as a social network designed for college students and later became open to the entire public. Websites like LinkedIn were created to fill the gap between the professional world and the social world online when Facebook was still closed off to the general public. Personally, I don’t use my Facebook page for professional purposes because to me, as someone who used Facebook when it was still closed off to public, it’s a social networking site for sharing content with friends and family. Whereas, sites like LinkedIn are meant to be used for professional purposes.

*If any lawyers are concerned about how to segment their facebook friend’s lists and limit privacy settings (aka Create Separate Faces), I suggest they refer to this guide. http://mashable.com/2009/04/28/facebook-privacy-settings/

It’s ironic you mention that this blog and other legal technology blogs help to bridge the generation gap between technology and professionalism. I went on an interview today where the partner at the firm asked me what I wrote about on Social Media Law Student. I informed him that I was interested in legal technology and he asked, “Why would anyone blog about that?”

Needless to say, I’m concerned we’re not reaching as many legal professionals as we should be if partners at firms are asking me this question.

Thank you for reading, your comments are refreshing!
Tracy Thrower Conyers October 5th, 2009 6:19 am :
Kool-aid, indeed! I posted on these cases myself when another legal blogger raised them a week or two ago and I started out with all the same warnings until I realized that the underlying news is OLD. Now you remind us that the news is old and represents a only few isolated events. Excellent post, Rex!

I think the new cautionary tale is not social media. It is traditional media. Stay away boys and girls!

[Reply]
Rex Gradeless Reply:
October 5th, 2009 at 9:27 am
The cautionary tale has been sourcing without due diligence. The communication medium itself, traditional or new, should not necessarily bequeath the faults of its users.

[Reply]
FLS October 7th, 2009 2:11 pm :
While you are correct that the events on which the discipline is founded in the NY Times article are not terribly recent, you must bear in mind that the disciplinary process is often lengthy. It is not uncommon for disciplinary opinions to be issued for events that occurred 2-4 years prior to the opinion. And those events that involve major harm to clients are investigated and prosecuted before social media violations. Have you checked to see how recently the actual discipline occurred? That can tell you how “timely” the reporting is.

It is also important to remember, as another commenter pointed out, that a trap of some of the social media technology is ease of immediate use. It’s easy to post things without enough thought. Should attorneys be thinking about these things? Of course. Do they always? Certainly not. And especially with social media, it is easy to forget that they are publishing to more than just their social group. Particularly for the demographic who began practice before the modern technological era, this can be problematic. Thus I think it is important for practitioners to consider that their online speech can be considered for discipline – something many attorneys have never had to consider before. So please do not diminish the value of the warnings, however isolated and outdated you may believe the incidents may be. I am presenting a CLE on the Internet and ethics in December, because it is a topic many attorneys in my area have not fully considered.

[Reply]
Rex Gradeless Reply:
October 16th, 2009 at 11:21 am
Happy to look up this public information for you:

NY Times ran Story on September 12, 2009
Sean Conway:
– Consent Judgment: 5/15/08
– Report of Referee: 6/11/08
– Supreme Court Order: 10/29/08
– Public Reprimand: Not dated
(Thus at least 11 months from last action)

Kristine Peshek:
– Complaint Filed: 8/25/09
(Thus at least 1 month from last action)

Frank Wilson:
– Court Order Took Effect 1/23/09
(Thus at least 8 months from last action)

The point in starting from when the events occurred was to point out that the legal community’s Internet use has probably become a little more savvy within the past 3 years.

I agree that attorneys should be thinking about what they are doing before they do it. This has always been the rule, even with letters, email, and public speaking. Clicking buttons on the computer may put you at risk without careful forethought. This reminds me of a little phrase I learned while in law school: you are a lawyer 24/7.

[Reply]
Rex Gradeless Reply:
October 29th, 2009 at 2:16 pm
UPDATE:
“Judge Kozinski Escapes Discipline” – http://www.law.com/jsp/article.jsp?id=1202435012678&th_Circuits_Kozinski_Escapes_Discipline_Over_Online_Smut

[Reply]
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