Kevin O’Keefe over at LexBlog has a fantastic article discussing the question of whether ghostwritten Lawyer Blogs are unethical. This is an issue which has been percolating for some time. This has been hastened by companies such as FindLaw and other consultants feeding into the legal field’s FUD (Fear – Uncertainty – Doubt) over social media. As lawyers we are typically well behind the curve in adopting new technology, advanced web development and social media is no different. To combat this, lawyers have attempted to compensate by doing what most lawyers do, throw money at the problem. Unfortunately, social media battles are won by investing time instead of money. And time is not something lawyers are known to ‘give away’ very easily.
Thus companies such as Findlaw and Lexis-Nexis have been making millions of dollars via lawyers trying to find the easy route into social media, taking money to quickly put up flashy websites, blogs, twitter and Facebook pages and populating those with breaking news and articles.
This is where the problem comes into play. Most often when these articles, posts or entries are published they are attributed to the lawyer/law firm on the account instead of the actual author. Unfortunately, misleading readers into thinking something was written by a lawyer runs afoul of most states’ rules of professional conduct, requiring:
A lawyer shall not make a false or misleading communication about the lawyer’s or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
As the Kevin’s article suggests, these posts and articles written under the auspices of being written by lawyers gives the impression of legal advise or opinions when in fact they are most likely written by college students at best. Of course, this may explain some of the content I have seen on many lawyers’ websites, but more importantly it goes to something far more important that the rules of professional conduct, it contributes to the public’s view of lawyers as liars and cheats who will do anything to make/save a buck. Let’s be honest, most legal blogs are not there to educate other lawyers, though they may do so as a bonus. They exist to increase search engine rankings and to improve the overall status of the lawyer/law firm who write them, to give them credibility in the area of law they practice. Taking credit for an informational article about the law that was actually written by a college student can hardly be deemed credible or trustworthy, neither to the public or other lawyers.
While I am not suggesting any ethics opinions are necessary to curb this practice, I would hope the members of the bar in general would refrain from this blatant degradation of our profession. As a self-proclaimed self-governing body, should not attorneys aspire to be seen better than this? Should we not encourage each other to something greater? Social media is an amazing tool which, when used properly, can be a boon to any business, including the law. But it can also be the converse, just another tool to artificially inflate a company and try and fool the readers into thinking something is what it isn’t. As Kevin O’Keefe aptly put it, “…this would be one that would draw a ton of publicity on and offline. Nothing gets more sensationalized when it comes to legal news today than lawyers and social media.” Or as we used to say in High School, “Don’t be THAT guy”.
The Effects of Social Media on Jury Trials
Having just finished a highly publicized jury trial in Indiana involving three wrongful death claims against the Indiana Department of Transportation, I can tell you that the jury’s access to social media, internet news and other sites was adressed with them every time the jury left the courtroom. Jury access to the internet and social media is becoming more and more of a concern to attorneys, especially once litigation has commenced. We are proud to welcome guest writer Alvina Lopez who writes about this topic:
The Effects of Social Media on Jury Trials
Originally social networking media sites Twitter and Facebook were used as a way to connect and communicate with old friends and out-of-town family members. More recently however the sites are used as an outlet to share every little aspect of people’s lives, even the mundane “I’m eating breakfast.” Partially to blame is easy internet access via smartphones—they enable users to permanently stay “connected” while on-the-go. Constantly being plugged-in is what ultimately encourages users to update statues or tweets 24/7. While it’s perfectly fine if you wish to publicly announce small tidbits of your daily life to the world on a regular basis, using social media sites while you’re actively participating as a juror can get you in a heap of trouble—so much in fact that you can be slapped with improper juror conduct and may face jail time.
While not all states have been able to control the improper use of technology in the courtroom just yet, currently leading the pack is California. Under the code of civil procedures §611 jurors have always been prohibited from researching, discussing, or spreading information outside of the courtroom, but California recently passed a new law that mandates judges to explicitly explain that the code includes “all forms of electronic and wireless communication.” The new law will take effect in 2012.
In Malta the law is a bit different says Tony from the top law company in Malta. While one may think that a law like this shouldn’t be necessary—after all hasn’t it always been known that jurors are only permitted to deliberate a case using the evidence presented in court?—it’s been deemed as a necessity after a slew of mistrials erupted due to the discovery of some jurors researching defendants’ criminal histories on the internet and discussing the case with fellow jurors whom they “friended” on Facebook.
The temptation is so easy—a juror can easily come across a news link to the case on Facebook or be influenced by the comments or statues someone posts regarding a high profile case. Not to mention that some jurors have a hard time controlling the various updates regarding the cases themselves. To delve in the seriousness of how people constantly discuss their juror experience, here are some real tweets extracted from Twitter on 9/20 using the hashtag #juryduty:
- Jury duty update: Weapons case. Defendant repping himself. He just gave what was essentially the “Unfrozen Caveman Lawyer” speech. Srsly
• Ok…was not looking for jury duty to be longer than three days…not a happy camper right now
• S/o 2 the people who r having wayyyyyyy 2 much fun at jury duty playing cards.. -_-
While it may seem like updating a Facebook status about a trial is harmless, it’s important that you remember why you were selected to be juror in the first place: your verdict will determine whether an innocent or guilty person is sent to jail. That said, you essentially have someone else’s life in in your hands. You never want to risk having a mistrial of a guilty man for example because you couldn’t fight the urge to tweet about the case.
So How to Avoid the Temptation? While ultimately it’s up to you to fight the urge to access social media and the internet while a case is underway, here are some additional suggestions that may make the process a little easier:
- Turn off your phone
• Temporarily remove the social media apps from your phone, or sign-out
• Do not friend request fellow jurors
• Temporarily deactivate your social networking account(s) until the trial is over
Hope you enjoyed this article, stay tuned for more.