At least 73 percent of adults online in the United States now use some form of social media. In a recent post for the ABA Law Technology Today, Judge Herbert B. Dixon Jr., associate judge on the Superior Court of the District of Columbia since 1985, talks about some of the ethical perils of social media in the legal profession.
Dixon, who is also the technology columnist for The Judges’ Journal, lists four pitfalls most commonly encountered by lawyers on social media:
- Responding to legal questions on their websites or blogs, possibly running afoul of restrictions on the unauthorized practice of law across state lines (Rule 5.5).
- Not paying attention to privacy settings and sending out a message intended for one individual or group but being seen by a larger, unintended group.
- Not paying heed to the permanency of posts on the Internet. After it’s out there, it stays out there forever.
- Trying to find out information about an opponent through the use of an anonymous friend request, in an effort to represent that opponent’s client (Rule 4.2).
Avoiding ethical lapses on social media is not easy. Dixon notes some inconsistencies with ethical standards, which vary by jurisdiction. For instance, a friend request is permitted by most state bar associations, as long as both sides use caution to not be inappropriate. But in Florida and Oklahoma, lawyers and judges are not allowed to be Facebook friends. Dixon believes that there should be uniformity in the rules. But until then, awareness of the local rules is key.
Pointing out that they are former lawyers, Dixon says judges are no better at steering clear of the dangers of social media. “When judges preside over cases, they really want to do the best job that they can in coming up with the correct decision,” he explains. “Sometimes that desire to do a good job leads to doing things that are prohibited by the Code of Judicial Conduct.” In one of the most egregious examples, Dixon recalls a U.S. Supreme Court justice who conducted his own research on a case and opened the hearing with the sentence, “I checked your website this morning,” and then went on to use that information to build the foundation of his argument. “If a trial or appellate judge did that,” Dixon says, “they would be castigated.”
Some lawyers and judges have run into problems by assuming the anonymity of their posts. Dixon shares the recent example of a judge seeking higher office who posted racist and sexist comments on a college sports board. Through information like where he went to college and how long ago, users were able to identify him and the judge withdrew his name for the higher post. “Even if you think you are being smart by doing something anonymously, your identity can be discovered.”
But it’s not only judges and lawyers who can run afoul of ethical standards in the legal system when it comes to social media. Dixon recounts a story in Florida where a juror on a case started doing his own research on the Internet. When the judge investigated the claim, he found that several jurors were doing the same thing, despite his instructions against it. This resulted in the term “Mistrial by Google.”
Dixon notes that the jurors were just trying to do their best and that sometimes a judge’s instructions can be forgotten because social media is so ingrained in people’s lives. He recommends an active approach to combat this problem. Judges need to start during voir dire and continue throughout the trial to emphasize that there is no using Google, no looking up maps or definitions, and no tweeting or posting. Those judges who provide early instructions and repeatedly emphasize those instructions are having fewer problems with jury misconduct than those judges who solely rely on the time-of-warrant instructions, Dixon says.
Four questions Dixon recommends all lawyers and judges ask before they post anything on social media sites are:
- Would I be embarrassed if others were watching me post right now?
- What would my mother say about this?
- How would this look on the front page of (insert any newspaper name here)?
- Does this violate the Code of Professional Responsibility or the Code of Judicial Conduct?
If you can ask yourself these questions and feel confident that you are okay, then go ahead. But if there are doubts, stop and think, and remember these items stay out there forever.
“Ethical Perils of Social Media for Lawyers and Judges” was an episode of The Digital Edge, a program on lawyers and technology hosted by Sharon Nelson, president of Sensei Enterprises, Inc., a digital forensics, information technology and information security firm in Fairfax, Va., and Jim Calloway, the director of the Oklahoma Bar Association's Management Assistance Program, who frequently speaks on legal technology issues.