Professional Responsibility Meets Facebook, Another Oops the Bar
posted by Danielle Citron
Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers. “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit. Went to a nice 2hr sushi lunch today at Sushi Zen. Nice place. Spent the rest of the day typing e-mails and bullshitting with people.” The summer associate signed off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.” The summer associate meant to send the email to his friend. Oops.
For a moment, let’s put aside the stark difference between the world (and law firm environment) facing the summer associates of 2003 and the one facing the summers of 2009 and turn to Sunday’s New York Times story “A Legal Battle: Online Attitude Vs. Rules of Bar.” The Times talked about recent cases where lawyers do violence to their careers through their online activities. Lawyers blog about judges: one wrote that he thought a named judge was an “Evil, Unfair, Witch” and questioned the judge’s competence. Another lawyer friended a judge on Facebook and later posted about his/her drinking and motorbiking. The problem: the lawyer asked the judge to delay a trial because of a death in the family in the same week that the lawyer shared the drinking tales with his/her social network. The lawyers in those cases have suffered serious consequences (the first is facing a reprimand from the bar, the second faced the wrath of his/her firm–the judge told the lawyer’s bosses what happened).
Now, the 2003 summer associate made a big mistake, but perhaps not on the same order as the lawyers covered in yesterday’s Times. The summer associate had a slip of the finger perhaps, a hasty moment that changed the way those in his firm saw him. But the lawyers arguably dove into the pool of their fate head first: one might say that they knowingly risked their careers and should suffer the consequences (to the extent the Bar desires and the First Amendment permits). Social scientists like Alessandro Acquisti and danah boyd and legal scholars like James Grimmelmann offer an explanation for why people are so foolish online. People write carelessly not because they have “a reduced sense of privacy” but because they felt anonymous. As danah boyd explains, social network participants “live by ‘security through obscurity’ where they assume that as long as no one cares about them, no one will come knocking.” They operate under the norm that people with no social connection to them “could look at your profile, but shouldn’t.” They assume that only close friends are paying attention to their online activities. All of this is to say that perhaps President Obama shouldn’t just talk to young people about the perils of oversharing online. Maybe lawyers need the lesson too.
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