The Business Of Law

As I’ve written before, here and here, the rules of legal ethics are being forced to adapt to changing circumstances in the profession caused by the social networking revolution.  The latest example of this is a legal ethics ruling out of Florida in which the state’s Judicial Ethics Advisory Committee said that judges and lawyers should avoid “friending” one another on the popular social networking site Facebook.   (The opinion specifically says it isn’t picking on Facebook:  the rule would apply to similar types of social networking sites).

The AP has a nice write up of the Florida situation here.

Specifically, the committee was worried that “friendships” could create the impression that lawyers have a special relationship with their judge friends that could give rise to some kind of undue influence.  I appreciate the concern but am afraid that the cure does more harm than good.

One of the judges from Florida quoted in the AP story said the following: “We as judges can still be good judges and still have friends. Part of our job is to not let that friendship interfere in any way with our decisions,” he said.  Of course, he’s exactly right: Judges will always have relationships with attorneys who practice before them.

But here is where I think that the Florida advisory committee might have gotten this one wrong.  When does less information ever lead to greater safety?  If a judge feels that he or she knows a particular lawyer well enough to allow that person to view the pictures of the judge’s last skiing vacation with the kids, wouldn’t it be better for everyone to know that?

Consider what happened before and continues now in the Facebook age.  Judges and lawyers talk when they meet in the changing room at the country club or when they see each other in the local grocery store.  The medium is different (golf course, grocery store, or social networking site) but the relationship is no different. In fact, on Facebook, one could argue that the relationship is much more transparent.

One of the many advantages of our increasingly interconnected world is the idea that it promotes greater transparency.

We know judges have friends, and we know that the possibility exists that those relationships could influence their decisions.  We hope they don’t, but we know it’s possible.  So again I ask:  isn’t it better to know about those potential relationships?

Facebook and other social networking sites don’t create relationships; they are a manifestation of them, a medium through which those relationships occur.  In the case of judges and lawyers, I’d prefer that those relationships were out in the open, where everyone could see them and thus be the judge (pardon the pun) of whether a judicial decision is influenced by a friendship.

Machiavelli’s “Prince” wisely observed: “Keep your friends close, and your enemies closer” but when it comes to social networking sites, some experts are recommending that bosses keep their subordinates at arms’ length.

As social networking expands at lightning speed, faster than even mores and ethical rules can keep up, employment lawyers are warning that bosses who “friend” their subordinates on social networking sites are exposing themselves to legal risk.

Tresa Baldas over at the National Law Journal had a great piece recently about the risk.  She writes:

Managers sending friend requests to staff via Facebook, Twitter and other sites constitute a growing trend in the workplace. And it’s one that needs to stop, the lawyers stress, because online relations between boss and employee can trigger or exacerbate a host of legal claims, including harassment, discrimination or wrongful termination, as well as touch off cries of favoritism if the boss friends only a select few subordinates.

The problem, of course, is that social networking sites often contain piles of highly personal information about one’s family, religion, sexuality, hobbies, lifestyle, you name it.  What if a worker is fired for a performance issue, and then later claims that the termination was because of some kind of discrimination?

Ordinarily in employment law, the plaintiff would have to prove that as the basis of the claimed discrimination, for example, the employer knew that the employee was gay, or was of a particular ethnicity, or religious group, or had a health condition of some kind, which was known to the employer. Now with the advent of social networking, plaintiffs may be able to prove “knowledge” not because it was said in the office but because it was simply posted. All they must prove is that the boss and subordinate were connected on Facebook.  That could be enough to prove knowledge and it would bolster the plaintiff’s claim.

The bottom line according to the article:

“Bosses who “friend” their subordinates on social networking sites may seem warm and harmless, but they’ve got liability risk written all over them.”

So should we stop any social networking between bosses and subordinates?
No. If companies wanted to shield themselves from employment liability they should in my experience first say goodbye to the office party, night shifts and small satellite offices staffed only by salespeople.  So instead, I am suggesting that companies consider the issue and whether some sort of sensible guidelines could be found to allow for collegiality.

Well, this is not my legal opinion, but I suppose each company is different, and the thing that likely makes the most sense is for companies to get their legal and HR departments together and come up with sensible guidelines that protect both management and employees.

Additionally, as a general rule, think of social networking as a giant cocktail party.  If you wouldn’t pull out pictures of your bachelor party at a cocktail party with your colleagues and subordinates there, then it likely doesn’t make sense to do it on Facebook either.