Just Because You’re on Social Media Doesn’t Mean a Licence to Be Unprofessional
That’s the message from an interesting piece in yesterday’s NYT entitled A Legal Battle: Online Attitude vs. Rules of the Bar .
Short extract suggests more issues in the future:
Stephen Gillers, an expert on legal ethics at New York University Law School, sees many more missteps in the future, as young people who grew up with Facebook and other social media enter a profession governed by centuries of legal tradition.
“Twenty-somethings have a much-reduced sense of personal privacy,” Professor Gillers said. Younger lawyers are, predictably, more comfortable with the media than their older colleagues, according to a recent survey for LexisNexis, the legal database company: 86 percent of lawyers ages 25 to 35 are members of social networks like Facebook, LinkedIn and MySpace, as opposed to 66 percent of those over 46. For those just out of law school, “this stuff is like air to them,” said Michael Mintz, who manages an online community for lawyers, Martindale-Hubbell Connected.
Its position on the front page of the paper suggests it’s going to be read by the managing partners, who will worry about potential damage to the value of the brand.
I was going to do a piece on this, Simon, when I read about it on Garry Wise’s blog, because all the commenters seem to tackle the issue at the tut-tut level. (Neither the NTY piece nor Garry’s, by the way, reveals that the judge about whom the comments were made that form the basis for the article, is quite a piece of work, according to Florida’s Judicial Qualifications Commission, and has recommended that the Court discipline her with a public reprimand, which decision she’s appealing.)
Ontario’s Rule 4.06 (1) comes into play here for us:
Excoriating a judge is not automatically the same as discouraging public respect for the administration of justice, of course. It may be unfair, impolite, intemperate and wrong-headed, of course. And it may be injudicious, so to speak: if the excoriator is in a firm, the firm’s reputation may suffer because of disapproving or timid clients; and there is the possibility that the excoriated judge will find a way to strike back, at the expense of a client — though that is likely more a fear than a real possibility.
I’m not recommending that we all dump on judges whenever and however we like. But I am pointing out that lawyers are timid beasts much of the time when it comes to public statements about the quality of judges and their judging; some won’t even criticize rulings in print for fear that they’ll create grudges. From the moment they enter law school lawyers have a hierarchical view of the profession in which judges are “above” and somehow “the boss of” lawyers — a truly unfortunate misconception that can lead to excessive reticence when it comes to the important duty of improving the administration of justice.
I think the mistake was to confuse the sort of discussion about the folly of judges which must happen daily at watering holes near to criminal courts, with putting it up in a public forum, expressed in terms which made the message have consequences.
Half the job of a publishing defamation lawyer is helping authors say things safely. Not to chill speech, or fudge criticism, but to take expression within applicable defences.
The judge may have been a piece of work – so were a number of old Ontario magistrates, who were notorious, and duly criticized by folks like Farrell Crook and Jack Batten.
Karl Kraus “Satires which the censor can understand are justly forbidden.” “Satiren, die der Zensor versteht, werden mit Recht verboten”, Fackel 309/310 40,
well, note from the story that the lawyer who was censured for the content of his blog did not engage in reasoned criticism of the judge, however severe. He called her a wicked witch. That’s a bit beyond what lawyers in any medium are entitled to say about judges … though whether the judge should respond, or the Bar, is a different issue. One recalls the Kopyto decision in the Ontario CA a few years back, where the CA noted that judges have relatively thick skins and debate is useful.
One of the commentators in the NYT story did point out that the particular judge was (and is) very bad, and this kind of thing needs to be said. One should not rely on the Bar to say it, most of the time. Can anyone give me an example where a Bar Association in this country has ever said anything critical of the judiciary? I can’t think of anything – from pay to titles to workload to work styles to …?
Legal concerns aside, I also think you need to consider how your online posts make you appear to clients. If a potential client googles you and discovers that you called a judge a wicked witch and regularly blog about your clients, they’re most likely going to immediately decide to choose a different lawyer.
Instead of treating online forums as you would everyday discussions with friends, you need to treat them like you would a meeting with a potential client–because with how much everyone investigates businesses and people online, it basically is.