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

February 7, 2011

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.