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How Social Media Is Pushing the Limits of Legal Ethics

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That some people simply cannot keep their social media usage to an acceptable level is no secret. Only unlike a student spending the entirety of Biology 101 updating her Facebook page or an NBA player tweeting from the locker room, this type of behavior can have real consequences when the user in question is sitting in a courtroom. The legal community has taken notice, and this week the American Bar Association held an entire event dedicated to the cause, complete with a keynote from former Supreme Court Justice Sandra Day O’Connor. However, although the legal community has caught on to the fact that its very traditional profession isn’t immune to the effects of social media, it’s far from having figured out the far-reaching effects that social media might have, much less having found many workable solutions.

And it affects the entire legal process, from jurors tweeting while sitting in the jury box to judges exposing potential biases on their Facebook accounts. Everyone has a cell phone, a computer and, likely, at least one social media account, so there are plenty of avenues on which to cross ethical lines.

Tweeting from the jury box: Public enemy No. 1?

Juror tweets have already made plenty of headlines, most recently when Steve Martin tweeted death penalty jokes while doing jury duty. In 2009, an Arkansas juror in a civil case tweeted — supposedly after the verdict had been issued — insults about the defendant in the case, and the plaintiff sought a declaration of mistrial based in part on those tweets. In November 2010, a Washington juror in a death-penalty case tweeted after getting selected for jury duty “OMG! jdg picked me 2 decide doods f8! Looks gil-t frm here ;-).” Although the judge scolded the juror, he was allowed to remain on; the case resulted in a hung jury.

According to Ben Holden, director of the Reynolds Center for Courts and Media, jurors using social media during the trial is a big deal, but it takes on different flavors that not all judges or attorneys understand. A juror pontificating, or pushing information out, is easy enough to deal with: If the information is discovered and shows a bias, the judge (hopefully) removes him. But Holden says that jurors pulling information is a far more complex issue and can end up polluting the entire jury pool. Tweeting jurors could have their opinions swayed by their cyberspace contacts, or they could actually conduct outside research on the case, which is a big no-no. Jennifer Lynch, a staff attorney with the Electronic Frontier Foundation, describes these situations as the intersection of parties’ right to a fair trial with jurors’ free speech rights.

It’s anyone’s guess how a judge will react in any given situation. Holden said that some judges are particularly naive about social media. “I find some judges I’ve spoken with either don’t fully understand how pervasive social media … is, or they don’t respect it enough,” he said. “[T]hey don’t see it as fundamentally different from newspapers, magazines or the town crier.” But some judges do get it, and their reactions might be as draconian — and potentially unconstitutional — as their colleagues’ opinions are naive. According to Lynch, some judges are actually demanding jurors’ social media login information so the judge and attorney can monitor their web activity during the case.

Your Facebook profile could get you out of jury duty

Jurors’ web activity presents other issues, too. Some attorneys are using Facebook profiles and tweets to both select a jury and cater their trial strategies based on what they find. Researching jurors is nothing new, though, and Lynch points out that there’s probably not much wrong with attorneys using even publicly available information from social media services to this end. Actually, a few bar associations even have authorized the practice in advisory opinions, she noted. At this point, the clear ethical line appears to be at creating fake profiles to friend jurors and access information in someone’s private account — a prohibition that extends to unearthing evidence about parties during the discovery process.

But the problem isn’t that simple. Maybe one attorney is, as Holden put it, “a friend of a friend of a friend of a Facebook friend” and has access to certain juror information that the opposing attorney doesn’t have. That attorney hasn’t necessarily done anything wrong, but, Holden asks, “Do you really want to have a system of law where the Sixth Amendment turns a blind eye to the fact that a lawyer happens to have friended someone who allows [the lawyer] into an account … giving them access to information on the prosecution side that perhaps the defense lawyer doesn’t get because he’s not a friend?” It’s one thing to gain an edge because of due diligence in a fair fight, but he sees a problem with cases potentially being decided because of an attorney’s social graph.

Can a Foursquare check-in prove an alibi or seal one’s fate?

For criminal defendants and civil litigants, their social media profiles can provide a rich field of evidence. Lynch said that judges now see a lot of social-media-derived evidence, which might inspire citizens, in general, to think about how they use the services. MySpace is still rather popular among individuals who end up in the criminal justice system, she explained, and Facebook photos could be used to disprove the extent of damage in a personal injury case. Even if attorneys don’t undertake underhanded methods to access private information, Lynch noted that profile photos are always available.

Additionally, noted Kurt Roemer, chief security strategist at Citrix, Facebook privacy settings are sometimes rolled back with updates, potentially making once-private information public. In other instances, he suggested, Foursquare check-ins could be used for a multitude of purposes, from finding potential witnesses to a crime, to helping prove whether a defendant was where he said he was. Knowing the potential for their previous social media activity to be used against them, Roemer also pointed to a trend among UK young adults of legally changing their names when entering the workforce to disassociate themselves with their Facebook accounts.

Should judges ‘friend’ lawyers, or be on Facebook at all?

Judges and lawyers aren’t immune from the ethical pitfalls of social media, either. EFF’s Lynch notes that attorneys tweeting or posting Facebook status updates that even casually relate to cases could violate the attorney-client privilege, and that rules restricting how attorneys solicit business also extend to social media. The Reynolds Center’s Holden cites, among other issues, possible concerns over ex parte communications stemming from judges friending attorneys that have cases before the judge. Whereas Ohio generally allows such relationships provided judges remain vigilant, Florida has taken a relatively hard-line stance against the practice.

At this point, it’s unclear that the legal system will get a handle on which social media practices are acceptable and which are not anytime soon. Lynch thinks there might be clear solutions to specific problems, but acknowledges that it’s a topic not easily addressable on a broad scale. Holden, who also heads up a new academic publication called the Courts and Media Law Journal, concurs. “We’re going to kill enough trees for 500 pages in a year [on this subject],” he said, “and we will not come up with an answer.”

Image courtesy of Flickr user Valerie Everett.

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40 Responses to “How Social Media Is Pushing the Limits of Legal Ethics”

  1. We’ve all been complaining about cell phones in restaurants for years, but most of us are probably guilty of that… I suspect social media in the courtroom will follow along the same course. Maybe it’s in bad taste, but for most of us, our cellies might as well be protected by the Second Amendment.

    …from my cold dead hands. ;-)

  2. Minor correction: the link you have provided says and I quote … “We’re guessing the Tweet read: “OMG! jdg picked me …….”. That wasn’t exactly what the juror tweeted — but your point is made.

  3. Will social media make politicians out of all of us, will it keep us honest, will it drive us to silence? No, no and no. Will jurors be dismissed, will cases be misshandled, will social media help in these cases? Well yes, yes and yes I think. The cool thing about social media is it helps to distinguish those who need a little help socially from those who need correction socially from those who are well versed in insubstantial matters.

  4. Thanks for the good read. I hope others will consider these things in earnest when posting to social-network sites and making decisions about privacy settings. The issue is definitely broader than the court system, but it can turn out to be especially difficult there.

  5. Great post. The killing of trees to address the legal conflicts with digital social media intervention in the court room is at the root of the whole issue. An old school solution to a new school problem will fail before the ink dries on the I-pad. Legislation will have to wait untill the solution is evident. We don’t even have a grip on the problem yet. I will be thinking on this post for all of the forseeable future. Good job.

  6. I guess I assumed that much of this would have already been shut down by the law, so I’m actually surprised. I was thinking that shutting off cell phones or not being able to use one’s iPad during a trial would have been no-brainers, and I couldn’t imagine anyone being allowed to take a cell phone into the jury room when regular phones were never allowed in. I could see where this could be a big deal.

  7. Good read. Social networking (or technology in general) is out-of-control legally. Technology just develops so fast that the paperwork can’t keep up. A good example of this can be illustrated by the state of the record industry…
    Media shapes culture, and this instant gratification kick everybody is on translates in a million disgusting ways.
    “OMG! jdg picked me 2 decide doods f8! Looks gil-t frm here ;-).”
    Jesus Christ.

  8. Thanks for sharing this info. I do not think the legal system will ever be up to speed with social media and it’s drawbacks. They will always be playing catch up.

    Why are jurors even allowed to have electronics in the jury box??
    Any juror that tweets or posts about a defendant looking guilty before a trial starts should be dismissed immediately!

  9. Very fascinating! As someone who works in Student Affairs and deals with the university conduct system, this is a question we have been struggling with for a number of years already…and without precedent in the legal system, we’ve been left to our own decisions in large part…definitely a slippery slope on many accounts!

  10. This is really interesting. When I was on a grand jury we were asked to not use our phone while in the room, but afterward a lot of the younger members went outside the room to check their phones. Although we did not have any social media related evidence.

  11. Well written. We recently had a murder case here where social media played a big role in both the prosecution and defense. As far as any of us had been able to figure, it was the first time witnesses were called to the stand that had no physical contact with the defendant… they were “facebook” friends whom the defendant had befriended and reportedly called in a drunken stupor to confess his guilt….. One lady from Washington State and another from Iowa were called to an Ohio courtroom as witnesses.

    The trial also had “live blogs” from the courtroom that detailed everything that was going on. 4 local news stations had people writing live from the courtroom, allowing us (that couldn’t be there ) to know everything that happened. Its a new world that the judicial system isn’t ready for!

  12. Jurors should NOT be allowed to tweet or update on Facebook or any other social media while serving duty. That’s just common sense.

    I sure hope I, or anyone I know, never find themselves in a situation where they have to be judged by a so-called “jury of my/their peers” because I would have to protest that I don’t hang around those kind of idiots (therefore, they’re not my peers)who lack good old-fashioned common sense! :O

    • gdtjohnson

      thank you for reminding us of the obvious analogy of phone usage/no access to newspapers/no television, etc. the same common sense that motivated those “rules” should also apply here. it’s amazing to me how many people will throw away their common sense and ethics in a heartbeat when faced with the prospect of being without their cell phones for a few minutes. we’ve grown so accustomed to shouting our opinions and every thought from the rooftops whenever we feel like it, that we’ve managed to convince ourselves that there are no limits – and then climb on our high horses to scream about the first amendment…anyway, speaking of climbing – time to get off my soapbox.

  13. Jurors should NOT be allowed to tweet or update on facebook or any other social media WHILE serving duty. That’s just common sense. If they’re not allowed to make a phone call, why should they be allowed to communicate any other way?

    I just hope I, or anyone I know, never find themselves in a situation where they have to be judged by a so-called “jury of my/their peers” because I would have to protest that I don’t hang out with idiots like that (therefore, they’re not MY peers)who lack good old-fashioned common sense! :O

  14. Great write up. Thank you.

    Personally I have always been a believer that media coverage of any trial should be minimal – and preferably none at all. This might be impossible but how many people in the law profession are going to be willing to admit they made a mistake once the public think that they have the guilty party? Tweets and other social media updates are just another extension of this and must surely lead to some wrong convictions along the line.

    Thanks for a great read and congrats on being freshly pressed.

  15. Last jury I was on they collected all the cell phones after selection but before the trial began. Wouldn’t work for a multi day trial but if they can tell them to stay away from the news why can’t they tell them to stay quiet until its done?

  16. I’m incredibly happy that this “fringe” tech is now finding a place at the heart of our society. I’m equally excited at the long-term implications of increased openness and sharing.

    Definitely looking forward to the future on this one :)

  17. First, Great article. It’s rare to see objectivity in a blog, and I applaud that.
    Second, and this is the point of my post: Why is transparency such a bad thing? From this article, my understanding is that the only way to obtain objectivity in a case is dependent upon those involved being completely closed off from society and outside opinion. Why is it viewed as “negative” to have outside opinions on a case? Why should people on trial only be judged by 12 people, vs ANYONE? This is a serious question, and delves into the nature of democracy*. If you are (guilty or innocent), why can’t EVERYONE see the evidence and not only decide for themselves, but help influence the decision towards the final result? Again, this is a question open for discussion and I’m only curious as to what the response happens to be.

    *For the sake of this post look up “democracy” (I have posted a link below) — that makes or breaks my point. I understand that in the United States we are a “republic” (and to the Republic, for which it stands…) and is functionally different than a Democracy, but the question stands.

  18. Such interesting implications here. I’ve recently been contemplating similar ideas in terms of teachers and students (and teachers and parents, for that matter) friending one another on FB…hadn’t considered the legal realm.

    Love the Tweets from jury members … how crazy is that?

  19. Speaking as a young lawyer, I find these issues of social media and the law to be fascinating, but I believe there is no chance for it to be settled anytime soon. Unfortunately, it is hard to find a lawyer who possesses computer skills and let alone understands twitter, facebook, foursquare etc. Then when dealing with ethics you are dealing with the judiciary which, from my experience, has even less knowledge of social media.

    So the problem is, the people who are in the position to create and manage legal rules over social media are the same people who have to ask what facebook is.

  20. This was a great read. I think with the problem of people using social media in the court room, establishing some sort of rule or law about media/technology usage should be mandatory to cancel out the problem, but I’m not exactly sure what sort of laws that would compromise or whatever. As far as apps like Foursquare, i think it does provide a wealth of opportunities as far as finding witnesses and what not.
    It’s hard though with social media, to really tell if someone is being genuine or if they’re presenting themselves in a manner online that is different than real life…an age old question with the this person real or fake.

    Great read..could go on more but no time for a novel ;)