Sometimes it seems like the legal profession will always have a tortured relationship with social media.
Writing for the ABA Journal, Deb Cassens Weiss quipped that “judges have to be judicious” when using Facebook. To underscore that fact, the ABA has now published an ethics opinion, warning that judges who use social networking have to follow the ABA Model Code of Judicial Conduct. (See Formal Opinion 462 for details). That means that judges should avoid contacts that would undermine their independence, integrity, or impartiality, or that would create an appearance of impropriety. When a judge hears a case argued by an attorney/golfing buddy or is deciding a matter involving a Facebook friend, any online interactions that the judge has with those individuals are suddenly a matter of record.
Meanwhile, a judge in Michigan has ordered an attorney to delete and replace comments on a Facebook page that included critical comments about a recent ruling. The issue centers around a settlement in a case against McDonald’s that allegedly sold non-halal meat that was advertised as halal. The judge enforcing a settlement in the case has ordered a Dearborn attorney to remove all references to the matter from a Facebook page he created. The attorney was even ordered to forward the names and contact information to the court of anyone who commented on the case or “Liked” a post. Free speech advocates worry the order violates First Amendment rights, but other lawyers point out that the page violated the terms of the class action settlement.
You Can’t Avoid the Issue
Lawyers must be active social media users. It’s an essential tool for communicating with the world today. (Besides, who is going to tell a judge to stop having friends or socializing with members of the bar or general public?) But Facebook in particular is proving to be a difficult arena for lawyers and judges to maintain professional standards while engaging in the public forum. Social media is easy to use, and therefore easy to abuse. Lawyers are just as prone as other people to post something online without thinking.
Undoubtedly, social media will challenge lawyer ethics for a long time. The answer is to embrace social media, but with the appropriate controls and technology in place. As the ABA Ethics Opinion says, “while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary.”
That’s why Nextpoint has been archiving social media for litigation since 2010. The open and casual nature of social media can lead to trouble. Lawyers and judges are subject to disclosure or disqualification concerns and often need to be circumspect about what they say in public about cases they may be involved in. Nextpoint’s Facebook archiving technology is a defensive tool, preserving your social media content for review in the event of litigation, but also serves as an offensive tool for obtaining and reviewing materials from an opponent. Learn how we are doing this, and how our archiving technology sets in the appropriate controls and monitoring measures around social media in litigation. You can download our Social Media eBook to learn more.