Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email
Ethics Byte

R u sure u want 2 tweet?

By Diane Karpman

Diane KarpmanFirst, let me apologize to all the judges, lawyers and others who recently received a routine “friend” request from “my” Facebook account. My daughter opened “my” Facebook account and was delighted to discover the 1,400 contacts in “my contacts” list. With unbridled enthusiasm, she said, “Let’s send ‘friend’ requests to all!”  Rushing out the door and without thinking, I said, “Sure,” not realizing the implications of this event.

To members of the judiciary, yes, I am aware that in some states (e.g., Florida), you are prohibited from “friending” a lawyer because it could convey the impression that the lawyer is in a special position to influence the judge. Kentucky, New York and South Carolina maintain that “friending” on social media does not imply that the friend has special pull, but that it may (in some circumstances) rise to the level of a “close social relationship,” mandating disclosure to opposing counsel or even recusal. Based on those considerations, it’s easy to understand why members of the bench have trepidation about social media.

A North Carolina judge, B. Carlton Terry Jr., was publically reprimanded by his state judicial standards commission for discussing a custody matter on Facebook with a lawyer. The three or four sentences constituted a violation of the ex parte prohibition.

Remember that judges are human beings, too, and we can’t expect them to live isolated lives in glass houses. They too have family, high school acquaintances and, of course, the long lost friends with whom they need to get in touch. Judges often face costly re-election campaigns and social media could be a bonanza for meeting these ever-escalating costs.

Eight million people “like” President Obama. One-third of Congress sends out “tweets.” Yet almost the entire judicial branch of the government is absent in the world of social media.

I also specifically want to apologize to the 12 people who graciously took time to explain to me that they are my friends but don’t want to maintain that kind of relationship on Facebook.

Other than my unthinking friend requests, the other story here is that our ethics rules are about three decades behind the times in giving us any guidance regarding electronic communications.  The American Bar Associations 2010 Legal Technology Report found that 56 percent of attorneys have a presence in online social networks. Our parochial advertising rules are burdened with ambiguity by attempting to take rules designed for print media and apply them to social media.

Facebook has more than 500 million active users, and the average user has 130 friends. People spend more than 700 billion minutes per month on Facebook. Twitter posts 2 billion tweets a month. CNN has full-time employees dedicated solely to monitoring what topics are “trending” (popular) on Twitter. They are searching for the next big story.

Lawyers in the cyber-universe are actively engaged in “data mining” (searching for leads on social networks). Class action lawyers routinely troll the Internet for class members, if not for lead plaintiffs (Barton v. USDC (9th Cir. 2005) 410 F.3d 1104).  Social media presents limitless marketing opportunities for lawyers; however, advertising/solicitation prohibitions may apply. Yet, tweets are limited to 140 characters, and it’s just about impossible to comply with advertising disclosure requirements with those limitations.

A handful of states require pre‑approval for lawyer advertisements, which might include a tweet announcing a victory in a case. This illustrates that the mechanisms and basic ideas of social media are fundamentally incompatible with many of the rules on attorney advertising.

Justice Joseph Grodin, in an attorney discipline advertising case, stated: “The philosopher‑lawyer Jeremy Bentham characterized as ‘dog law’ a system in which a person has no way of knowing that he is doing something wrong until he is punished for it.” (Leoni v. State Bar (1985) 39 Cal. 3d 609, discussing mass mailings.) What could be more massive than a Facebook post that instantly reaches all 50 states and is translated into more than 70 languages? We would all be well-advised to think twice before launching a message into cyberspace.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at