I'm always pleased to see judges embracing new technology. And it's not just because, as an aspiring lawyer and a Webby, techie guy, my ability to find a job in this economy may depend on it. I really do believe that technology can help judges do their jobs better.
Thus, it was with great interest that I read this article, published in Texas Lawyer and posted on Law.com, which examines how three Texas judges take advantage of Facebook and other social networking sites in their daily duties. Some of the article comes across as a bit of a no-brainer to Web denizens: the gist of the third judge's story was that she's seeing an increase in material from social networking sites being introduced as evidence. Well, yeah. It's not exactly a shock that lawyers would eventually think to tap such a data source as massive as the various social networks.
But the tales of the other two raise some interesting points of discussion. The first judge, Judge Susan Criss of Galveston's 212th District Court, only started to use Facebook this year, but is now "a Facebook regular," friending lawyers for networking and campaigning purposes. (Completely unrelated: Can I mention how much I hate the concept of electing judges?) Much to Judge Criss's chagrin, though, she has discovered that people are a little too forthcoming in their profiles and status updates:
In her six months on Facebook, Criss has read all sorts of surprising comments posted by litigants and lawyers. "I've seen witnesses talk [on Facebook] about a case they are going to testify on. I've seen litigants bragging about anticipating making a lot of money. Those words can be used in front of a jury to cross-examine them," Criss says.
When Criss sees such comments on Facebook, she says she alerts lawyers on both sides. "Lawyers need to talk to their clients from the very beginning to find out what they have put on the Web," she says.
She also offers a few great tales of Facebook faux pas. My favorite:
Criss recalls that recently a lawyer told her she needed a continuance because of a death in her family. The judge previously had given the lawyer a weeklong continuance, but at a subsequent hearing the lawyer's senior partner, who appeared on her behalf, told Criss his colleague actually needed a month-long postponement, Criss says. "I knew from her bragging on a Facebook account that she had been partying that same week," Criss says. The judge says she told the senior partner at the hearing about her Facebook discovery and denied his request.
Of course, more than anything, Judge Criss's tale is a lesson on how lawyers need to smarten up when it comes to using social networking sites. But I find myself a bit worried about the prospect of judges using social networking to police those who appear in their courtroom.
There's no denying that lawyers and jurors should not be using social networking sites in ways that violate professional ethics or court instructions prohibiting outside commentary. And Judge Criss is to be commended for calling them on it when they do. But the situation would become somewhat Big Brotherly, were her approach to be more widely adopted. Indeed, the story of the second judge, Associate Judge Kathryn Lanan, brings this sort of concern into focus. Judge Lanan serves as a juvenile court referee and has taken to requiring that all those juveniles whose cases she hears make their social networking pages open to the public, so that she (and other judges) might monitor them (sorry Andrew, yet another example for your social network hijacking saga):
About 85 percent of the 250 juveniles who come under her jurisdiction each year post on social networking sites, typically MySpace, Lanan says. When she is online at work and at home she follows their posts. And when a child appears in her court, she and her court reporter make sure they have a copy of what has most recently appeared on the child's page. Some of the most disturbing posts she has encountered included an alleged offender bragging about "jumping a kid" -- beating him up -- as part of a gang initiation. ...
The judge admits that a handful of defense lawyers have objected to her monitoring of alleged offenders' pages, suggesting she is violating their right to free speech. Hitchcock solo Lynette Briggs, who represents juveniles in Lanan's court, says she disagrees with the judge's social networking policy for her clients, because Lanan is the one who determines what is or is not offensive. But Briggs notes that the judge does not revoke a child's probation solely because he or she has violated her social networking rule.
Now, I'm not quite as worried about Judge Lanan's policy of monitoring because her job appears to directly involve the oversight of these kids. But when you take Judge Criss's approach in combination with Judge Lanan's, you potentially run into some disturbing results.
First of all, when it comes to judges friending lawyers, the judges have an awful lot of power. Would a lawyer really be comfortable rejecting a judge's request, given that the lawyer always wants to stay on the judge's good side, both for his own good and that of his client? Of course, if the lawyer does accept the request, then he or she will constantly be under the judge's gaze, and could get into the sort of trouble that Judge Criss recounts. While the lawyers in her stories were just being stupid, it's not hard to imagine situations where lawyers might mouth off on Facebook about something wholly unrelated to their cases, but nevertheless get into hot water when the judge takes a dim view of their thoughts or opinions.
Now, that doesn't mean that lawyers shouldn't watch their mouths when posting online. I don't condone ignoring ethics rules just because a judge is out of hearing. And maybe it's reasonable for lawyers, as officers of the court, to have their online speech curtailed somewhat. Certainly, it should already be curtailed as ethics rules require. Besides, this sort of slide into "judges as online speech police" is quite speculative -- like I said before, I think Judge Criss has done the right thing, taking these lawyers to task for their Facebook posts. But it's a slippery slope, just the same, and bears consideration. Because as much as I hope that lawyers will smarten up and monitor themselves more carefully, human nature suggests that they won't. And that'll only encourage the judges to take that monitoring upon themselves.
(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)
Photo courtesy of Flickr user Diane M. Byrne, licensed under a CC Attribution-Noncommercial-No Derivative Works 2.0 Generic license.
