There’s no doubt that the stunning rise of social media has left an indelible impact on most professional industries. But few industries have been as troubled by ethical questions following the rise of social media platforms like Facebook and Twitter as the legal industry. Many lawyers embraced social media in their personal lives, but professional conduct has proven to be a completely different story, especially when it comes to connecting with other lawyers, or even judges. While the American Bar Association has not yet set clear guidelines for ethical social media use among lawyers, the issue has sparked a spirited debate here in California and throughout the country.
“Whereas before I was much more free to post about my family, my kids’ baseball games, where I was,” San Jose Federal Magistrate Judge Paul Grewal told the San Francisco Recorder, “as a judge you have to be a bit more restrained in sharing those types of personal events.” This closely follows the advice of the California Judges Association, which ruled in 2010 that judges should always be cautious online. “In short, notwithstanding the explosion of participation in online social networking sites,” the advisory reads, “judges should carefully weigh whether the benefit of their participation is worth all the attendant risks.”
Many judges, like San Jose Federal Judge Jeremy Fogel, think that even Grewal’s relatively modest approach to social media leads to ethical questions. “It’s a poor idea for judges to participate in social media because you don’t know who’s reading what you post,” he told the Recorder. “And even if you’re just a passive viewer, you’re probably hearing and seeing things that you shouldn’t.”
Over the past year, the ABA has been reviewing its client development guidelines for lawyers, and this week released a report which stopped short of implementing clear rules, but seemed to suggest that Judge Fogel’s concerns are unlikely. The report’s cover letter states that “the commission concluded that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.”
Still, many observers agree that preventing lawyers and judges from using social media could raise first amendment issues. “The social media platforms are stretching the ethical ideas way beyond what has been thought about before,” said legal ethics expert Diane Karpman in an interview. But, she adds, “Putting regulations on social media is a violation of freedom of speech.” Karpman’s first amendment concern is likely a primary reason why the ABA would steer of blocking lawyers from social media. And this is a good thing. If a lawyer wants to act unethically, he or she will find a way with or without the help of Facebook. So when it comes down to it, the main impact that social media will have on the legal profession will be to increase transparency and make it easier for consumers to interact more directly with their attorney.
So if you’re a lawyer or judge, don’t seat the online stuff. If you’re careful not to betray your clients by leaking confidential information or harm an ongoing lawsuit, then the chances are that you can navigate social media without accidentally acting unethically.
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