Legal Ethics

Does Anyone Care About Their Reputation?

Lawyers and judges say the darndest things.

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Shouting woman mom yellingIn these times of disagreement about just about everything, I think that there are still some things that we lawyers can agree on or, at least, should be able to agree on and that is that lawyers and judges say and do the darndest things. (Dinosaurs will get the reference to Art Linkletter who interviewed kids on his afternoon television show. Given things that I’ve read recently, perhaps “kids” applies to lawyers and bench officers as well.)

Here are just a few examples of lawyers and judges who have said and done the darndest things.

We’ve all been warned, advised, scolded (choose your verb) about the perils of Facebook, Twitter and the like. Full disclosure here: while I’m nominally on Facebook, I rarely log in, as I think it is a tremendous time-suck, and I have better things to do with my time, like write this column (although some readers might disagree that this is a better use of my time). I also have a Twitter handle, but again, I have better things to do with my time. (I know, my social media skills are dinosaurial. So stipulated.)

A trial court judge here in California was benchslapped by the Commission on Judicial Performance for a post the judge made on Facebook. He took it down almost immediately, but by that time the damage had been done. He was publicly admonished. Do you think that was sufficient discipline?

What was he thinking? It doesn’t look like he was. The article said that the judge apologized right away, but so what? The post was already out there. The judge had also friended several defense attorneys on Facebook, and he unfriended them after the Commission found that he had violated a separate judicial ethics rule by friending them.

Here’s my question, aside from the ones above. What happens to a judge’s purported neutrality when he “Facebooks” lawyers who might conceivably one day appear in his courtroom? (Just like “network” is now a verb, so is “Facebook.”) What does this post say about his judgment or lack thereof? His integrity? His impartiality? Is a post like that grounds for disqualification? I don’t know the answer, but I think it might make the basis for an interesting recusal motion. Let’s be clear, however: a judicial robe is not the same as Harry Potter’s invisibility cloak.

Facebook faux pas are not just for judges. Columnist Robert Ambrogi shared several “what were they thinking” episodes from the Sunshine State. 

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I don’t get it. Why jeopardize the trial and/or your job by posting comments on Facebook? Is there an upside that this dinosaur lawyer doesn’t get?

I bet when you were in law school, you didn’t think about line spacing of briefs; we were all focused on learning the law and then being able to regurgitate it to pass our bar exams. We didn’t get introduced into the various (and lengthy) Rules of Court until we actually started going to court. I and others got tripped up almost immediately because we didn’t know chapter, verse, even line of the applicable rule contained in the voluminous looseleaf volumes published in SoCal. (The mantra became “did you check the local rules?”) We all got scolded all the time. However, as Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, recently noted that since she’s been a lawyer, a trial judge, an appellate judge, and now Chief, she’s used to being scolded. Very true for all of us in the profession.

So, learning about line spacing is really important as a Biglaw firm recently found out.

Here’s something I don’t understand. Why try to circumvent the rule? What’s the point? How does it make a firm look when it gets bench-slapped for this? Any reputational risk here? Was it the hope that the noncompliance wouldn’t be noted? Why not just do it right and by the rules in the first place? (Uh-oh, my Midwestern upbringing is showing.)

Here’s a good way to be disciplined and probably disbarred: forge judges’ signatures on wiretap orders. Romance reared its ugly head, as the wiretaps were placed on the phone of a love interest of the lawyer who did the forging.

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Really? Is it worth jeopardizing your livelihood? Facing possible prison time? Throwing a career away for a romance that may not even stand the test of time and probably won’t? I’m reminded of a song from the musical Chorus Line. 

Way back in dinosaur days, when I would train employees on what they needed to know about discovery (yes, emails are discoverable), I would tell them that Rule Number One was to not put anything in writing that they weren’t willing to see on the front page of the newspaper the next morning. If they had any doubt about that, they were to refer to Rule Number Two, which, simply stated, said “See Rule Number One.” The same holds true for social media postings.

And let’s not forget that prospective employers will not hesitate to look at your social media profile.

As the recruiter notes, the Internet is forever, and your legacy, so to speak, will be more than just your good work, your satisfied clients, your standing in the legal community. It’s also your social media brand. Your epitaph will be more than what’s engraved on your headstone when you’re taking that dirt nap.

Again, it goes to the whole issue of judgment: what’s appropriate and what’s not. What kind of image do you want out there in the world? How would you explain yourself in Ambrogi’s examples? “Whoops” won’t work.

The ABA and many state bar associations have issued guidance on the use of social media. 

Ditto guidelines for judges, at least here in the Golden State. 

I’m not saying don’t use social media; it’s here to stay and it can be a great tool for communication, promotion, sales, networking and the like, but I think Sgt. Phil Esterhaus on the great 1980s TV cop show Hill Street Blues said it best at roll call, “Let’s be careful out there.” 

https://www.youtube.com/watch?v=_pIkkzDagsY

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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