Facebook and Your Practice
Joe Perry is a law clerk for the D.C. Office of Bar Counsel in Washington, D.C., and can be contacted at firstname.lastname@example.org.
A district court judge was recently publicly reprimanded by the North Carolina Judicial Standards Commission for “friending” on Facebook the counsel for the defense during child custody proceedings. The judge and defense counsel posted messages on Facebook
to one another that referred to specifics of the case. Although most young lawyers are probably savvy enough to avoid conducting unauthorized, ex parte communications online, there are less obvious dangers lurking within the rapidly expanding world of online social networking. Facebook is no exception. Always keep the following in mind when using Facebook.
Your Profile as a Billboard
First, even if you are not actively soliciting business through your Facebook profile (a practice involving ethical considerations beyond the scope of this article), your profile still represents an advertisement for yourself. Because you never know who might be your next client, you should be cautious when friending anyone.
As the public has plenty of attorneys to choose from, potential clients may ultimately make decisions on who to represent them based on attorneys’ political affiliations, religious convictions, and/or personal interests. Seemingly harmless statements on your Facebook profile can turn off clients. Ask yourself this: If your life were on the line and you had narrowed things down to two attorneys who otherwise appeared qualified, would you take the one who lists Law and Order as her favorite television show or the one who decorates his profile page with pictures of SpongeBob SquarePants?
Second, if you are one of those Facebook users who enjoy accumulating heaps of friends or someone who feels guilty turning down anyone’s friend request, you are probably befriending individuals without careful screening. Although making these kinds of connections can be part of the fun, attorneys must remember that relationships create conflicts. What if, unbeknownst to you, that new friend you added also happens to be your judge’s son-in-law? There is no distinction between a bosom buddy and a bare acquaintance on Facebook, and just try arguing to a court that you are only really friends with someone if you “poke” them more than five times a day. Even if you are lucky enough to draw Facebook-literate judges, they may still err on the side of caution when it comes to questions of disqualification and/or recusal.
Finally, for attorneys, regulating your own online conduct is only half the battle. You need to be aware of your client’s online practices as well. Suppose you are trying to establish your client’s fitness as a parent or that your client is genuinely remorseful about a wrong he has acknowledged committing. The last thing you need is pictures of him partying hard showing up online the day before trial. Even if your client thinks he is among friends, your case may be in danger if someone in the room has: (1) a camera, (2) a Facebook profile, and (3) a friend of a friend of a friend who once sold a used car to your opposing counsel.
As attorneys, our work can be a source of great pride and satisfaction, but it also can be stifling. Online networking sites like Facebook provide a liberating opportunity for self-expression outside the confines of our offices or courtrooms. They’re wonderful places where we can openly admit that, all else being equal, we would rather be a professional basketball player.
But even in these new, joyful environs, young lawyers must be careful as closely monitoring who gets “friended” may not be enough. There is no control over who might be looking over your friend’s shoulder at the wrong moment. Worse, even if opposing counsel has never seen the page in question, if she can convince a judge there is relevant evidence contained therein you may find yourself subject to a very unpleasant brand of court-ordered socializing.
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