Vol. 39 No. 5
By Mary Dunnewold
The ABA’s Legal Technology Resource Center reports that 56 percent of lawyers currently maintain a presence on at least one social networking site. As a law student, up until now, you may have used LinkedIn for your professional profile and Facebook or other sites mainly as a way to have fun and connect with friends. But because lawyers are now using social networking as a professional tool, you need to start thinking about how to use social networking sites to enhance, rather than detract from, your own professional persona. This means you need to understand how other lawyers are using social networking, so you can respond appropriately.
WHAT NOT TO DO
Jason Law Student has applied for a job at a big firm, a job he really wants and feels he is well qualified for. Through Facebook, he is “friends” with a couple of other young lawyers working at the same firm, whom he met at a party while in law school. During the hiring process, Jason’s “friends” at the firm check out his Facebook page. They discover posts complaining vociferously about his summer law firm job, posts about how much he dislikes particular law professors and saying that “law school is a complete joke,” and pictures of him at law school parties using drugs and drinking heavily. The pictures and posts are brought to the attention of the law firm’s hiring committee and Jason is not invited back for a second interview.
You have probably heard of hundreds of examples in the news detailing the effect of information obtained through Facebook on employment decisions, in the legal profession, and otherwise. In fact, being fired as a result of a Facebook posting has become so common, it has its own entry onurbandictionary.com: “Facebook fired.”
WHAT TO DO
Be aware of the dangers of posting personal information. Legal employers, law schools, and even bar examiners are using social networking sites to collect information about law students during hiring and admissions processes. For instance, the Florida Board of Bar Examiners adopted a policy allowing the investigation of social networking websites on a case-by-case basis for certain bar applicants. Applicants with a history of substance abuse issues, candor issues, and unauthorized practice of law allegations, among other issues, may be subject to this sort of investigation. Relevant information found on social networking websites may then be used as evidence in an evaluation of an applicant’s character and fitness to practice law. While the bar examiners in other states have not yet taken an official position on the use of social networking sites during the character and fitness evaluation process, they may not be far behind Florida.
Employers are also using social networking websites to gather information about employees and potential employees. While most employers realize that a few misguided or silly posts do not represent the entire candidate, given today’s competitive job market, students should take care to avoid jeopardizing job opportunities in any way. Similarly, law schools may potentially use social networking sites to gather information about applicants or about current students involved in honor code investigations.
Follow a few basic rules to protect yourself against the use of information in ways you didn’t anticipate. For starters, use privacy settings wisely as a first line of defense. Currently, the default settings on Facebook are set to share all basic information about a user’s page with “everyone,” including status updates, posts, contact information, and photos. But users may alter their privacy settings to reduce the amount of information shared with all viewers. Thus, through privacy settings, you can make basic information—name, gender, and photo—available to the public, but keep other information private. You can also specify who will see your posts, and you can separate friends into different categories with different levels of access to information.
Despite taking these precautions, users need to understand that they cannot take privacy for granted, even when they use privacy settings. Facebook’s basic philosophical position is to share all information with all users. So if you have not specifically made certain information private, it will be shared. Further, information can be inadvertently shared through friends even if you use your privacy settings with care. Thus, you should assume that anything you post can potentially make its way to anyone else on the network. At a minimum, you may want to review the privacy policies of the social networking sites you use so you can make considered decisions about whom you are sharing information with.
As a second line of defense, avoid posting anything online that could affect you negatively in an employment, bar admission, or school situation. You should also be careful about who you friend online because friends can copy and repost information about you. And if you are employed in a legal setting, you should remember that the rules of professional responsibility apply to you even online. So you should never mislead anyone in online communications, and you should avoid commenting on your workplace, your clients, or cases you are working on.
CONNECT AND NETWORK
Consider Shelly Lawyer. She’s newly admitted to the profession and doing everything she can to build up business in her small firm. She creates a Facebook page specifically to market to new clients. Her site provides information useful to her clients, like contact information, office hours, her educational profile, and practice specialties. Her status updates are targeted to “fans” interested in specific legal topics. On her page, she also provides weekly news stories of interest to potential clients and answers general questions, like whether she is available for a particular kind of work.
On the positive side, Facebook, LinkedIn, and Twitter can be useful tools for professional networking. Like Shelly Lawyer, you can set up pages specifically to market your firm, provide contact information, and list practice areas. On a firm news feed, you can post information about what’s happening at the firm, invite clients to educational seminars, or provide tips to clients. You can also advertise directly on Facebook, which may establish you as tech savvy, and thus make you appealing to certain types of clients. You can use social networking pages to connect with colleagues as well. For instance, law students may want to create user’s groups for student organizations and interest groups.
A WORD OF CAUTION
Professional responsibility boards have taken conflicting positions on whether lawyers and judges can be “friends” on Facebook. The South Carolina Advisory Committee on Standards of Judicial Conduct has determined that judges may be “friends” with other legal professionals, as long as they don’t discuss anything related to the judge’s official position. On the contrary, the Florida Judicial Ethics Advisory Committee has stated that judges may not be “friends” with lawyers who appear before them. So don’t be offended if some legal professionals don’t respond to friend requests. They may just be acting prudently to protect their professional positions.
Finally, some lawyers, and even judges, are using social networking sites to collect information about clients, witnesses, jurors, and legal professionals they work with. For instance, one judge discovered that a lawyer who had requested a continuance because of her father’s death had actually spent the week partying, according to her Facebook posts (Molly McDonough, “Facebooking Judge Catches Lawyer in Lie, Sees Ethics Breaches,” ABA Journal, July 31, 2009). Other judges have used Facebook to monitor the behavior of defendants to see if they have violated the conditions of probation (Richard Acello, “Web 2.UH-OH: Judged by Facebook,” ABA Journal, Dec. 1, 2009). And Facebook has become a popular source for gathering evidence relevant to divorce and child custody actions ( See, e.g., In re K.E.L., 2008 WL 5671873 (Tex. Ct. App. Feb. 26, 2009).
In the end, when using social networking sites, use good judgment, and remember that anything you post may make its way to an employer or other authority interested in your character as a lawyer. If you have doubts, don’t post.
Mary Dunnewold, is a legal writing instructor at Hamline University School of Law.