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Is social media for lawyers as dangerous as the ABA Journal implies?

I’ve been asked by lawyers around the country to comment on the story in this month’s ABA Journal about how dangerous social media is for lawyers.

Reading the article penned by Steven Seidenberg, I couldn’t help but think back to the lesson I learned talking to reporters as a young lawyer. The underlying mission of newspapers and magazines is to sell copies.

Create sensational stories, you’ll attract more readers. In these days of social media, the more sensational and controversial the story, the more the story will be shared and blogged on.

The ABA Journal has a record of supporting blogging and other forms of social media. Seidenberg, an attorney with over 20 years experience as a legal affairs journalist, has a nice record of legal reporting.

But the story title, ‘Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous,’ feels pretty sensational.

And you lead off with these three examples of lawyers getting in trouble using social media as evidence of how dangerous social media is?

  • Florida Attorney Sean Conway, in a effort to expose what he thought was the denial of a right to a speedy trial, blogged that Broward County Court Judge Cheryl Alemán is an “evil, unfair witch,” “seemingly mentally ill” and “clearly unfit for her position and knows not what it means to be a neutral arbiter.” Is it any surprise that the Florida Bar concluded Conway was guilty of making false or reckless statements regarding the qualifications or integrity of a judge and engaging in professional conduct that is prejudicial to the administration of justice?
  • Illinois Attorney Kristine A. Peshek’s revealing confidential client information while blogging about cases she was working on cost Peshek her job as an assistant public defender in Illinois. Surprise?
  • North Carolina Judge Carlton Terry Jr. was publicly reprimanded by the state’s Judicial Standards Commission because Terry, after becoming a Facebook friend of an attorney appearing in a case before the judge, exchanged Facebook comments with the attorney regarding the proceeding before the judge. Substantive ex parte communications?

No question Seidenberg goes on to address some dilemmas regarding a lawyer’s use of social media and draws some interesting commentary from ethics authorities. Some of it practical insight, some legal ethics theorizing.

I just question the title and tone in which this article leads off. Why not a more reasoned approach? Are the above examples of lawyers and judges getting into trouble in their use of social media the rare exception and evidence of a gross lapse of judgment or a regular occurrence?

Sure there are ethical rules that will prescribe certain activity by lawyers in their use of social media. Some authorities and bar associations believe that ethic’s rules need to be re-written to cover social media.

Others such as Stephen Gillers, who teaches legal ethics at NYU Law School and is a member of the ABA’s Ethics 20/20 Commission, believe ethics rules ought not to change with innovation in technology. “Many of the rules are at a high-enough level that they can be applied to new technology without revision.”

I’m in the Gillers’ camp. I am also in the camp of looking at the issue from a practical standpoint.

The stories cited by Seidenberg are the very rare exception. Tens, if not hundreds, of thousands of lawyers are using social media. These lawyers are aware of the ethics canons that govern their behavior at all times, including in the use of social media, and use their good judgment to remain in compliance.

  • http://www.gjel.com/blog Ben Buchwalter

    Like in all other areas, people should use common sense when it comes to social media use. You’re right that in the three examples you isolated above, Conway, Peshek and Terry were incredibly careless and it’s likely that no one was surprised when they were punished for their comments online. That makes me think: even without the help of social media, it might not have been long before they practiced bad judgement publicly to get them into trouble.

  • http://www.sanantonioemploymentlawblog.com tom Crane

    Yea, I blogged about the same article and said basically the same thing. The issue is not social media – the issue is what we say at the wrong time. Social media is simply a new place to say the wrong thing.

  • http://www.jdsupra.com/ Adrian Lurssen

    “…I couldn’t help but think back to the lesson I learned talking to reporters as a young lawyer. The underlying mission of newspapers and magazines is to sell copies.”
    Ah, Kevin, off topic (I haven’t yet read the article you reference) but your cynical view of newspapers and magazines saddens me – I hope you’re not 100% correct because then we’re all in trouble.
    I’m the son of a South African journalist – and as far as I understand it, his paper’s goal was to tell the truth. I have friends who have foresaken dotcom largess and are working journalists. They’re in it to tell true stories as they see them, business model or not…
    To me one actual danger of social media is that it can help to eliminate that old-world dedication to neutrality that was part of the DNA of a newsroom. As I see it, social media can enable us to find the voices we approve of, the points of view we already accept, the choruses we only agree with (and that only agree with us) … and entirely shut out any chance for an opposite (and perhaps reasonable) point of view to come in. Find your team, stick with them.
    It is easy today to feel informed and only hear half the story. Newspapers and magazines, guided/edited by real pros, well-trained at what they do … I believe they can still play a role to inform us in ways that matter.
    That’s not limited to the legal space – and anyway, as I said: off topic.
    There’s a difference between monetizing eyeballs and telling the truth (or at least reporting the facts in as neutral a way as possible) … and I hope when the dust settles we still have the latter with us.

  • http://www.NatLawReview.com Jennifer Schaller

    All the hullaballoo about the Internet and Social Media is how broad its impact can be with a minimal amount of cost and within a relatively short period of time. I’ve been reading the posted comments to the ABA’s Technology Working Group Issues Paper’s on this matter. And while it’s true that lawyers have been joining clubs and networking since the dawn of the profession, the mere speed, cost savings and effectiveness of a well executed social media program does not have the same reach as shaking hands at the Jaycees.
    One of the things that hopefully will emerge from this will be the increased need for uniform guidelines across jurisdictions. From reviewing the numerous comments from lawyers about the unparalleled impact a blog or other on-line initiative has had in helping spread the word about their expertise, hopefully now more than ever more members of the legal profession will realize the need that if there are going to be regulations that they are as consistent as possible across jurisdictions.