Okay, I reluctantly admit it. I have the occasional compulsion to watch The Good Wife. Maybe it’s because it’s set in Chicago. Maybe I’m just a sucker for the legal drama category.
In case you don’t watch, The Good Wife is a drama starring Emmy Award winner Julianna Margulies as a wife and mother who boldly assumes full responsibility for her family and re-enters the workforce after her husband’s very public sex and political corruption scandal lands him in jail.
In the most recent epsiode, What Went Wrong (Air Date: 12/11/11), a team of criminal defense lawyers, and investigators, look for a way to have a judgment thrown out following a guilty verdict. The team tracks down jury members to learn that one juror who blogged about the trial while on the jury, also “friended” the judge, who accepted the request, during the trial, a no-no to be sure:
Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives.
Whether or not a judge-juror “friending” warrants a mistrial, per se, I leave to you legal ethics experts. It undoubtedly raises at least a question.
It would seem that the interplay between social media, ethics, the judicial system, and the practice of law is really just warming-up:
- Defendant receives Facebook message from juror
- Judges Should Watch Whom They ‘Friend’ on Social Media and What Friends Post About Them
- Juror’s Tweets During Trial Cause Death Row Inmate’s Murder Conviction To Be Overturned
- Social media has benefits and pitfalls for courts
- Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords
And these issues certainly not a new topic here at Lawyerist:
- Be careful who your friends are
- Facebook ethics: it’s not about Facebook
- When lawyers spy through Facebook: the ethics of “regional network” changes
- The Effect of Social Media on the Law
- Friending for Evidence
- Subpoena Facebook Information
- Top 5 Social Media Ethics Concerns for Lawyers
And while I’m somewhat sympathetic to certain situations where the application of ethics rules to the use of social media are more tricky, generally speaking, it seems to be a matter of common sense.
Aren’t those lawyers that are “having trouble” applying ethics rules to social media the same that “have trouble” applying these rules elsewhere? Is it truly a matter of vague rules and complex technologies? Or rather, is it a matter of laziness, desperation, or other failure of due diligence in learning and understanding how these technologies work and what they’re actually doing?
Seems to me that if you follow the rule: if it’s online it’s public; you’ll avoid many of the pitfalls.
However, being a competent lawyer should require more than merely “pitfall avoidance” measures. Competent lawyers should know about:
- Lawyers ability to access Facebook information of a party other than their client in pending litigation.
- Friending, or directing another to friend, a party or witness to obtain evidence.
- Monitoring juror activity on social media networks.
- Competency of representation related to knowledge of social media.
- Diligent representation related to investigating social media sites.
- Preservation of social media evidence.
- Third-party communications related to social media.
For better (mostly in my opinion), or for worse (sometimes and resulting from the growing pains of being a new technology), social media is here to stay. It has a much larger impact than on legal marketing ethics alone. And if not today, in the near future, being a competent lawyer, in many practice areas, will require an understanding of how clients, jurors, judges, and other lawyers use them.