The Interaction of Social Media and the Law and How to Survive the Social Media Revolution
| Citado como | Vol. 52 No. 4 Pg. 0024 |
| Páginas | 0024 |
| Año de Publicación | 2012 |
2012 Winter, Pg. 24. THE INTERACTION OF SOCIAL MEDIA AND THE LAW AND HOW TO SURVIVE THE SOCIAL MEDIA REVOLUTION
Volume 52, No. 4
Winter 2012
I. INTRODUCTION
By now, most people have at least an elementary knowledge of the term "social media." In fact, many businesses find that a social media presence is a must in today's digital world. However, even sophisticated users may not yet realize how significant is the connection between social media and the law. Social media affects virtually every area of law, from criminal law to employment law to civil rights and family law, as well as any form of litigation, and even the ethics of the practice of law itself. Some state courts are very strict with their social media regulations, others lenient, and still others have expressed no opinion on the subject matter at all. New Hampshire falls into the latter category, where few opinions have been expressed regarding the interaction of social media and the law.
A.What is Social Media?
When people think of social media, they often think of Facebook. While this is not unreasonable, it significantly limits the true breadth of the impact social media has. In reality, social media is any online service or site that focuses on building social networks or relations among people who share interests. Generally, these sites consist of a representation of each user (usually a profile), his/her links, and a variety of additional services depending upon the individual site. Most of these services are web-based and provide means to interact over the Internet, like Facebook does. Social media sites allow users to share ideas, activities, events, photos, videos, and many other things to whoever may be interested. Each and every online blog and most websites offer some form of social media today.
B.The Social Media Progression
Social media has come a long way in a very short period of time. A lot has happened since the very first email was sent in 1971.(fn1) In 1978, the first copies of early web browsers were distributed through USENET, an early online bulletin board.(fn2) Then, in 1994, one of the Web's first social networking sites, Geocities, was founded.(fn3) In 1995, TheGlobe. com gave users the ability to personalize their online experience and share content with other interested users.(fn4) In 1997, AOL Instant Messenger was launched, popularizing instant messaging.(fn5) Also in 1997, Sixdegrees.com was launched, allowing profile creation and listing friends.(fn6) We concluded the twentieth century with a means of communication that would change the social and economic community.
Then, in 2000, the dotcom bubble burst and sent the stock market crashing.(fn7) That did not deter the technological progress and in 2002 Friendster was launched.(fn8) This pioneered the connection of real world friends and the user base grew to over 3 million users in the first three months.(fn9) In 2003, MySpace launched and the first shot was fired in the modern day social media revolution. Followed by sites like LinkedIn, Classmates.com, and Facebook, social media flourished. In case people were not already connected to each other well enough, Twitter launched in 2006, allowing users to document their every move.(fn10) Currently, Facebook has over 845 million users, cementing the argument that a social media revolution indeed has taken place over the last decade.(fn11)
With over 845 million users, it does not appear that Facebook will be dying off any time soon. So one asks: "Do I join the social media revolution and if so, why." There are several reasons to enter the social media universe, including connectivity, the ability to freely advertise, and ease of communication with the world or a specified target market and the elimination of geographical barriers. If that does not convince you, join in order to avoid falling behind the competition. Whether you have already adopted a social media lifestyle or plan on doing so in the near future, there are many things to think about, including how social media and the law interact.
II. ATTORNEY ETHICS
One major area where social media has affected the practice of law is in the ethics arena. The lawyers' strict ethical code governs conduct inside and outside the practice of law. Attorneys must be careful when they post anything online, lest they face the wrath of an angry judge, a governing body of ethics, or perhaps an alienated client or colleague.
A. Bloggers Beware
The case of Sean W. Conway provides a cautionary example. Attorney Conway thought a Florida circuit court judge was effectively depriving defendants of a right to a speedy trial and wanted to do something about it.(fn12) The judge was asking defendants to be ready for trial within a week, thus requiring them to request a continuance, thereby waiving their right to a speedy trial.(fn13) Conway went through what he thought were the proper channels but his efforts produced no result.(fn14)
On October 30, 2006, Conway blogged about the issue on JAABlog, a forum where attorneys discuss issues concerning the Broward County Court.(fn15) The blog called the judge, Cheryl Aleman, an "evil, unfair witch," "seemingly mentally ill" and "clearly unfit for her position and knows not what it means to be a neutral arbiter."(fn16) The Florida Bar determined that Conway had violated five ethical rules, including rules regarding making false statements or reckless statements about the qualifications or integrity of a judge and engaging in professional conduct that is prejudicial to the administration of justice.(fn17) Conway's argument that his actions were protected by the First Amendment was rejected by the Florida Supreme Court.(fn18) Ultimately, Conway received a public reprimand and was fined $1,250.(fn19)
Additionally, an assistant public defender in Illinois lost her job for blogging about a case she was working on and revealing confidential client information.(fn20) In addition to being fired, she was charged with violating legal ethics.(fn21)
B. Won't You Be My Friend?
Carlton Terry, Jr., a North Carolina judge, was publicly reprimanded because he became a Facebook friend of an attorney appearing in a case before him, and the two men exchanged comments online regarding the proceeding.(fn22)
Jurisdictions appear to be split regarding whether attorneys can "friend" judges on Facebook.(fn23) The Judicial Ethics Advisory Committee in Florida believes this would be unethical if there is a possibility the attorney might appear before the judge.(fn24) On the contrary, Kentucky, New York and South Carolina do not believe that "friending" a judge is a violation of ethical standards, as long as a close social relationship does not exist between the two individuals outside of the social media contact.(fn25)
One question is whether it is permissible to attempt to connect with the opposition in a case via social media. Model Rule 4.1(a) forbids a lawyer from making "a false statement of material fact or law to a third person," and Rule 8.4(c) forbids a lawyer from engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation."(fn26) According to multiple bar associations, both of these rules are violated when an attorney connects to an individual under false pretenses.(fn27) So what happens if you do not use false pretenses? What if you do not disclose your motive at all? Well, it appears jurisdictions are split regarding whether an attorney is required to disclose his/her motive from sending a friend request or connecting via social media.(fn28) As a result, caution must be exercised and a conservative approach with social media may be the only way to ensure immunity.
C. Social Media Marketing
An easy way to violate the code of ethics is to advertise improperly using social media. Legal advertising is highly regulated in many states and social media has made it much more cost effective and easy to advertise to large groups of people at once. Even though a post on Facebook seems more like informal communication, it may be considered an advertisement by the responsible governing body for ethics.
"'A long series of ethics opinions [including ABA Formal Opinion 10-457 (2010) and Arizona Ethics Opinion 97-04 (1997)] indicate that if online activities promote a law practice, it is attorney advertising. '"(fn29) A basic rule of thumb is to be very careful if you are posting something online in order to attract clients. If so, you are likely advertising.
D. Third Party Posts
Incredibly, even posts by others may result in an ethics violation. According to Ethics Advisory Opinion 09-10 (2009) of the Ethics Advisory Committee of the South Carolina Bar, recommendations on sites like LinkedIn or Facebook must not "create unjustified expectations or otherwise mislead a prospective client."(fn30) As a result, attorneys must review endorsements and recommendations to be sure they do not create unjustified expectations or mislead prospective clients. This puts a significant burden on attorneys to keep their online identity updated and to review what others are posting about them.
As more attorneys use social media including blogs, Facebook, and Twitter, the danger of ethics violations increases. "The ABA's 2010 Legal Technology Survey Report found that 56 percent of attorneys in private practice have a presence in an online social network like Facebook, LinkedIn, LawLink or Legal OnRamp."(fn31) That...
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