Judges can be Facebook “Friends” – sort of?

I find this hard to believe, or maybe I just am feeling a little taken back …. But let me start at the beginning.

Apparently, the legal profession has been talking about whether judges can ethically be friends of others on Facebook .   I think this is silly.  IMHO, of course they can.  They just can’t tweet and put on their status updates things about their job like, “Had a litigant make a stupid argument today. What a loser.”  

Apparently, someone was actually concerned enough to take this to the South Carolina Department of Justice which issued the following opinion (link here):

“A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.”

The SC opinion just talks about law enforcement officers and employees of the Judge – not lawyers appearing before the judge.  Although you could argue there is a distinction (namely that attorneys are representing a party where as the law enforcement officers are on the side of administering justice), that line blurrs when you consider that law enforcement officers could include prosecutors and could be witnesses for the state.

 I don’t see how the issue of judges being friends is any different from any lawyer being a friend on Facebook or any employee for that matter.  Lawyers cannot reveal confidences and employees cannot divulge trade secrets or confidential information (including pricing and strategies) of their employer.  That’s right, even regular old employees cannot put on Facebook something like  “we are not bidding on this project” or “we got intel today that made us all jump up and down because they will announce XYZ tomorrow” or ”we are bidding xyz for 8 mil and going to blow them away” or well, you get the picture.  Just don’t say that kinda stuff and you are cool, right?

Common sense.  Well, there’s more.  The Judicial Ethics Advisory Committee of the Florida Supreme Court was asked to answer these two questions (among others) (link here):

Whether a judge may post comments and other material on the judge’s page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.

ANSWER: Yes.

Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”

ANSWER: No.

 Huh?  I get the first one, but the second?  Respectfully, I disagree with their reasoning.  They explain (underline is mine):

The inquiring judge proposes to identify lawyers who may appear in front of the judge as “friends” on the judge’s page and to permit those lawyers to identify the judge as a “friend” on their pages.  To the extent that such identification is available for any other person to view, the Committee concludes that this practice would violate Canon 2B.

Canon 2B states:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”    

***

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

Does anyone really think that if a lawyer is a Facebook “friend” of a judge that that alone is enough to suggest an impression that that person could influence the Judge? 

Perhaps people use Facebook differently.   Think about it this way.  Facebook has supplanted the use by most people of their own web site.  Back in the day, computer geeks all had their own bulletin board.  Then in the 90s, everyone had their own homepage (I had one on Geocities).  Now, we have Facebook pages. 

So let’s apply Florida’s reasoning to homepages.  Could a judge have his or her own homepage open to the public with cute pictures of their cats and runs and awards and speeches?  Sure they could (subject to the same ideas above that they cannot say certain things about litigants, etc.).  So why is Facebook different?  Because of the word “Friend”  that is applied to those who have to affirmatively be granted access?  And because the very consideration of a request to access by the judge and the granting of that request is could lead to an impression of a preference over others?  I mean, theoretically, a judge could make his or her profile completely available and open to everyone on Facebook — but they would still have “Friends”.   In an open Facebook page, keeping “Friends” is not about access, but about “listening” to certain “Friends” status updates in the news feed and keeping an address book.   This is no different than basically publishing which personal websites a judge visited to keep tabs on people in the “old days.” 

I guess this is a long way of me saying that being “Friends” on Facebook does not mean you are “Friends” but that you have logged certain acquaintances in your address book and listen to the same stuff they’d have posted on their websites.  I don’t imply any true “friendship” to it.  

On the flip side, I can see that one of the purposes of social networking is to create an “in” crowd.   But here’s my point: How is that any different than real life?  Lawyers go and talk to judges all the time at dinners and events.  What if all those were actually logged.  To me, the logging is the only difference.

BTW – I guess in Florida you can’t have a “Connection” with a judge on LinkedIn? 

 

 

 

THE NIGHT BEFORE CHRISTMAS in Legalese

THE NIGHT BEFORE CHRISTMAS in Legalese
(Author unknown)

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as (“I”), being the joint-owner in fee simple of the House with the party of the second part (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional co- conspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: “Merry Christmas to all and to all a good night!” Or words to that effect.

December B2B Article on FTC’s new Guidelines regarding Endorsements on Blogs is now online

My December article in the Dayton Daily News’ B2B Magazine is now online.  It is entitled, ” When it comes to blogging, disclosure is best practice: Social Media is all about integrity, trust and transparency.”  The article explains that on October 5, 2009, the Federal Trade Commission (FTC) issued its final revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the first updates since 1980), which became effective December 1, 2009 of this year.  The article gives a thumbnail sketch of what this means to bloggers.   For the article, click here.

Just to give my blog readers a “little more” on the subject, here’s the rest of a paragraph that was not published due to space constraints.

Bloggers who have not complied with the principle are now playing catch-up.  They may even be erring on the side of over disclosing.  The rule is not as broad as it seems.  For example, in Example 8 to Section 255.0, in the Guide, the FTC notes that it is not considered an endorsement if a consumer that (1) buys dog food and decides to review the food on a blog or (2) is given a free trial bag of dog food by the store.  However, it would be considered an endorsement, subject to the disclaimer rules, if the consumer obtains the food through a marketing program aimed to distribute the food to potential reviewers.  Thus, it is the more direct advertiser-blogger relationship that is the focus because it gives rise to the potential conflict of interest. 

For more information on the subject The Guide can be found here.  For more information about the FTC historically going after the advertiser that prompted a review without proper disclosure, see here.

November B2B Article on Privacy and Social Networking is now online

My November article in the Dayton Daily News’ B2B Magazine is now online.  It is entitled, “Privacy becomes a more complicated issue for online marketers: Traditional laws remain intact despite increased accessibility of information.”  In it, I explain that the offline laws apply online, that there are a number of sector specific laws that apply both to online and offline data, and that there are a number of purely online laws.  I also explain that you cannot forget about the limits of the Terms & Conditions and Privacy Policies that you agree to when you use these social networking sites.  Enjoy!  For the article, click here.

Social Media as Alternative or in Addition to BBB When Too Small to Sue

A post at MyShingle.com asks whether lawyers should suggest not only going to the Better Business Bureau with complaints that are too small monetarily to sue over, but also whether lawyers should now suggest using social media to start a viral campaign telling everyone the issue.  See the post here.   My initial thoughts: just be careful what you post is not libelous and complies with other laws.  Some people get so angry, they get carried away.  But if they can stay within the laws and are not breaching any contract by doing so (such as confidentiality provisions), and can take the risk that it might provoke other issues with that company if there is any ongoing relationship, then go for it.

October B2B Article on Immunity, Blogs and Social Network Is Here!

The B2B has published the next in my series of artlices with co-writer David Bowman.  This October article is called  ”Blogs, comments subject to libel law:  Sites walk fine line between editing, being immune from suits.”    It discusses some choices you might want to make about how you set up your site and what you choose to edit and how that might affect whether you have immunity for what others say on your blog.    Happy reading!  (Next artcle will be on privacy aspects of social networking….)

Copyright term chart

Copyright term graph

This is great.  Found this chart while researching something else.  Everyone asks me how long does a copyright last, and I have to give some hedging answer because well,  look left at how complicated it is.  Anyway, this is great.  Tuck this chart away. 

Tom Bell, released it on his website under a Creative Commons Attribution-Share Alike 3.0 Unported License. This file is licensed under the Creative Commons Attribution ShareAlike 3.0 License. In short: you are free to share and make derivative works of the file under the conditions that you appropriately attribute it, and that you distribute it only under a license identical to this one. Official license

Social Networking Helps Cut Company Legal Fee Costs – How? Read on!

Social networking is helping companies (specificially corporate counsel) cut legal fees by providing groups and forums for them to discuss and share ideas and answers to legal questions for free.  For instance, on Linked In, there are topic groups that you can subscribe to, like Intellectual Property.  You can then post questions and answer other people’s questions.  Human resources professionals are also benefiting.  Of course, there are issues about the lack of attorney-client privilege and there is no privacy to the questions.  However, for general inquiries that are not private (perhaps such as “Where might I find good examples of social networking policies?”), these sites can really help.

Corporate counsel are also trading forms and drfating their own documents before sending them to outside counsel.

To read more about how companies are cutting costs, see this article here, which incidentally, mentions LexisNexis, my employer.

Facebook and Privacy

Are you concerned about your privacy on social networking sites?  Take a look at EPIC’s site on just this topic here.   You’ll learn a number of things.  For instance, the Canadian Privacy Commissioner investigated Facebook’s privacy practices, issued some findings, and Facebook listened and issued a press release about some changes it will make here.  Specifically, in that August 27, 2009 press release, Facebook says these will include:

“• Updating the Privacy Policy to better describe a number of practices, including the reasons for the collection of date of birth, account memorialization for deceased users, the distinction between account deactivation and deletion, and how its advertising programs work.

• Encouraging users to review their privacy settings to make sure the defaults and selections reflect the user’s preferences.

• Increasing the understanding and control a user has over the information accessed by third-party applications. Specifically, Facebook will introduce a new permissions model that will require applications to specify the categories of information they wish to access and obtain express consent from the user before any data is shared. In addition, the user will also have to specifically approve any access to their friends’ information, which would still be subject to the friend’s privacy and application settings.”

Go to the Settings tab, pick Privacy Settings, and pick what you want to be shared!

Facebook posts disparaging your co-workers can get you fired

Yes, Virginia, Facebook postes disparaging your co-workers can get you fired. Just see story of Griffin Scott, who posted on his Facebook status that the rest of the news team didn’t know what the Enola Gay was. He described the incident like this:

“The comment was posted on my personal Facebook page on August 14. I made the comment that I ‘knew what the Enola Gay was and that makes me the only person under 40 who knew that in our newsroom. Not sure whether to be proud or not,’” he said.  

See the Denver- The Latest Word blog here.

Apparently, three days before he was fired, he was asked to remove the post, which he did by deactivating his account.  They fired him anyway.  Now he has filed suit for breach of contract.  The station had terminated him under  a contract clause that prohibited him from subjecting the station to public disrepute, contempt, scandal or ridicule. For more on that see here.