By Brian Malcom 

Social media is becoming a crime-fighting weapon, and criminal defense attorneys are catching on.  For some reason, most people believe that there is anonymity on the Internet.  This is an especially absurd belief when people go through great pains to make themselves as visible as possible in social media.

A Nashville, Tennessee criminal defense attorney named David Raybin immediately advises his clients to shut down their Facebook account.  I suspect that he is not the only criminal defense attorney giving this advice to his clients.  Lately, there has been an increased use of social media by police investigations.

The ABA Journal writes, "USA Today notes several cases throughout the country in which police investigations were bolstered by taking time to explore YouTube, Flickr and other online message boards:" 

• Police in Suffolk, Va., were able to identify suspects involved in a Dec. 14 street fight when cellphone videos were posted on YouTube.
• Police in Chattanooga, Tenn., discovered an online forum where residents were planning illegal drag races, staked out the area and ticketed participants.
• Police in Los Angeles used YouTube and Flickr to identify people suspected of being involved in riots following the June 2009 NBA Championship. 

What can a young lawyer learn from this?  Well if you are interested in going into criminal defense, you may want to advise your client to immediately delete their social media account.  If you are not interested in criminal defense, maybe you should just take this as a yet another example that social media can be dangerous.

I would place good money on the fact that all bar organizations are already trolling social media outlets for information about bar applicants, committee applicants, and practicing attorneys under investigation for ethical misconduct.  This may be a good time to take down the picture of you doing a keg stand at last month's young lawyers get together.

Reminder about my rule of thumb: never post anything on the Internet you don't want your employer to see.  Thanks to cache technology, anything posted to the Internet will exist forever in cyberspace.

Brian Malcom 

"While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office." Florida Judicial Ethics Advisory Committee, Opinion Number: 2009-20. 

Judges across America may notice their status in Web 2.0 slip a bit today.  The Florida Judicial Ethics and Advisory Committee ruled that it is inappropriate for judges to be social media "friends" with lawyers that could appear before them in court. The Committee based its decision on Canon 2(B) of the Florida Code of Judicial Conduct.  The Canon reads:  "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 determined "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."  Accordingly, the Committee held that "that identifying lawyers who may appear before a judge as "friends" on a social networking site, if that relationship is disclosed to anyone other than the judge by virtue of the information being available for viewing on the internet, violates Canon 2(B)." 

In a bit of social media mercy, the Committee went on to clarify that judges can have "friends" on social media sites, but they cannot "friend" lawyers  who may appear before the judge.  Thus, the judge can friend non-lawyers and lawyers who do not appear before the judge, "either because they do not practice in the judge's area or court or because the judge has listed them on the judge’s recusal list so that their cases are not assigned to the judge." 

The Committee did clarify that its opinion applied to Facebook or "any social networking site which requires the member of the site to approve the listing of a “friend” or contact on the member's site, if (1) that person is a lawyer who appears before the judge, and (2) identification of the lawyer as the judge’s “friend” is thereafter displayed to the public or the judge's or lawyer's other “friends” on the judge's or the lawyer's page."  To name a few, this would encompass connections on LinkedIn, followers on Twitter, and friends on MySpace (do people still use MySpace?). 

Sorry, judges. 

By Emily Zibart 

As you are inevitably aware, the Internet has created unique and seemingly endless opportunities for intellectual property infringement.  Social networking and other new media websites create particular dangers for trademark owners, who can wake up one morning to suddenly find themselves the targets of phony Twitter or Facebook accounts.

With victims ranging from international companies such as American Airlines and Exxon Mobil to celebrities like Lindsay Lohan, online impersonation is rampant.  Moreover, the risk of encountering counterfeit goods is no longer restricted to the physical realm.  The sale of counterfeit virtual goods has taken the popular virtual world Second Life by storm. 

For these reasons, any comprehensive brand protection strategy should take into account the impact of new media sites. Check out my more in depth articles about how to protect trademark rights on Facebook and about brand protection on the micro-blogging website Twitter and the virtual world Second Life.   

By Brian Malcom 

We have written about how Twitter can get you fired.  We have written about how Twitter can get you hired.  Now, we are going to tell you about companies using social media to solicit applications and recruit candidates. 

CNNMoney.com discussed this new trend in a recent article.  The article tells the tale of companies using social media to advertise open positions and communicate with potential candidates, in lieu of more traditional means of advertising a job opening.  "Posting ads on job search sites like Monster.com could mean spending hundreds of dollars -- and precious hours poring over resumes. In contrast, social media tools are mostly free and offer added value: Candidates bring their own online networks, blog content and references, which speeds up the interview process." 

If you haven't already switched over to Twitter, Facebook, LinkedIn or Craigslist to search for job listings, or if you haven't seen something shiny off in the distance and become otherwise distracted, let's discuss how this might affect young lawyers or law students.  In honor of Twitter, I will try to do so in 140 characters or less. Here goes:

Firms may use web 2.0 to find legal talent. Toss the classifieds. Get a laptop and PDA. Follow firms on web 2.0 sites, and look for job listings. Times are changing.

By Robert Chapski 

LinkedIn is a great networking tool but one blogger at at the Legal Blog Watch questions the extent to which judges should participate in the professional networking site. Several judges have already jumped aboard.  The article is yet another reminder of how much our social, personal and professional lives are blurring together.  Be careful out there. 

By Brian Malcom 

"Bob likes to kick puppies."  "Eileen likes to wait outside ice cream shops and steal ice cream from small children."  These are the types of libelous statements that could get me slapped with a libel suit if I post them on my Twitter account (or publish them to a blog for that matter...oops).  

The question has already been asked, what's a Tweet worth?  A defendant in a defamation lawsuit could find out the hard way how much her Tweet can cost her.  According to the Chicago Bar-Tender, the plaintiff is seeking $50,000.00 in damages.   The lawsuit stems from a Tweet by the defendant that read, "You should just come anyway.  Who said sleeping in a moldy apartment was bad for you?  [The plaintiff] thinks it's okay."  The complaint alleges that the defendant "maliciously and wrongfully published the false and defamatory Tweet on Twitter, thereby allowing the Tweet to be distributed throughout the world."  According to the Chicago Bar-Tender, the defendant only had about 20 followers.  The defendant's Twitter account has been closed. 

A few things for YLB readers to learn from this situation: 

• A Tweet is a publication
• In everything you do on Web 2.0, check your privacy settings.  Twitter allows you to "lock" your Tweets.  Though any Tweet would likely still be characterized as a publication for the purposes of libel, it is still a good idea to control who views your content.  If you still insist on keeping your Tweets open, be very careful about what you decide to publish. 
• Do not use Twitter to defame others.  If you decide to publish a Tweet, you had better make sure it's true.
• Advise your clients and friends to be careful with their "Trash-Talking Tweets."
• While this suit involves Twitter, there are many other ways to "publish" defamatory statements in Web 2.0.  Be careful on MySpace, Facebook, LinkedIn, and anywhere else on the internet where you are publishing.
• A video or audio clip recorded and then published on the web can arguably get you in just as much legal trouble as a written statement. (Cough...Cough...YouTube posts....Cough...Cough...CNN iReport posts.)  Be careful with any recording of statements, especially if they're untrue. 

Who wants to predict where the next libel suit will come from?  Let's hope it's not YLB.

"Asked for the ABA’s 2009 Legal Technology Survey Report whether they personally maintain a presence in an online community or social network such as Facebook, LinkedIn, LegallyMinded or Legal OnRamp, 43 percent of respondents answered yes, almost triple the 15 percent positive responses in the 2008 survey." 

Law firms, ever the pioneers, are also starting to catch the wave.  "When asked whether their firms maintain a presence in an online community or social network, only 12 percent of respondents said yes, up from 4 percent in the 2008 survey." 

Here is a graph showing the growth from 2008 to 2009, using the ABA data:    

The most significant growth was in firms with 10-49 lawyers, which jumped from only 1% in 2008 to 7% in 2009. In short, lawyers are on the rise in social media and law firms are not far behind.  YLB asks, Why? 

Here are some reasons Lawyers might enjoy social media: 

• The practice of law is a relationship-based industry, and maintaining old and new relationships is facilitated by Web 2.0.Lawyers spent a lot of time in school, and, hopefully, made a few friends a long the way. 
• Web 2.0 is a great tool to keep up with old school friends.
• Lawyers, and definitely litigators, are often social people that like to interact with others.
• Cheap advertising. 

Here are some reasons Law Firms might need to be on social media: 

• Cheap Advertising.  We are in a recession people.  While advertising budgets get trimmed, Web 2.0 is taking off.  An online presence and a bit of viral marketing can go a long way in getting a firm's name out there.
• Big Brother.  That's right, folks...law firms may be establishing pages to monitor the profiles of current employees, attorneys, and possible recruits.  Everyone knows it, we here at YLB are not afraid to say it.  It makes sense, too.  A law firm's name is its brand and it has to be protected.  If you don't like it, fix your privacy settings.
• Enhanced Client Communication.  While Web 2.0 is not the place for confidential information relating to actual cases or controversies, it is a nice medium for sending out client bulletins, legal alerts, and commentary on recent caselaw.  Clients always like free legal work.  Loyalty is the firm's reward or new clients, if it's lucky.
• Cheap Advertising.  It's so nice I will say it twice.

Web 2.0 is growing in the legal community.  You have been warned. 

By Brian Malcom

We here at YLB are dedicated to the task of preventing you from getting fired because of social media.

While common sense goes a long way in properly using social media, a little advice never hurts.  (Hint: Just like warning labels on products, there is a reason I am giving this advice!) Here is some general advice: Assume your boss reads everything you write.  If you would not want your boss reading your post, it's probably not safe or smart to place on the web for all the world to see.

Basic Twitter Advice:

• Do not tweet about your lack of motivation
• Do not tout recent job offers
• Do not badmouth your job, your colleagues, your boss, your company or your clients
• Do not tweet about your illegal activities
• Do not tweet inappropriate comments about co-workers

Basic Facebook Advice:

• Do not use Facebook to bash your job, your colleagues, your boss, your company or your clients
• See Twitter tips for status updates
• Do not login to Facebook while at work (With the "chat" feature, your "friends" can see when you're online.  If you should be working, work) 
• Assume everyone can see everything. (Don't lie to your boss about a family emergency, and then post a picture of you dressed as a fairy at a Halloween costume party time-stamped on the date of the supposed emergency)
• If you're a professional, keep your Facebook page professional and/or private

A recent MSN article highlights the plight of those who failed to heed common sense and my, apparently, late advice. For your entertainment, below is an excerpt from the article which points out some terrible, but true, tweets.  These 10 examples of Web 2.0 blunders get the first 10 honorary YLB Web 2.Oh No! Awards.

"Paul Wilson, a freelance/corporate Web marketer and blogger, found several of such moments on Twitter, a social networking and micro-blogging site, and posted these "Top 10 Tweets to Get You Fired" [sic]:

1. "hate my job!! i want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!"
2. "So my job was to test all the food at the new resturant, can I just say, ughew. I'm going to taco bell then twistee treat."
3. "Workin... This job sucks worse then the economy!"
4. "I'm going to work! Walmart! Must find better job! I hate it when chicks there have a deeper voice than me and refer to me as foo!"
5. "Also I'm really bummed that I'm working today, i asked off so i could study but my boss is a ******* **** ***** ***** who can't read."
6. "Coworker smuggled out a chair for me. Currently being paid to SIT around and listen to John Barrowman on my iPod. I don't hate my job today!"
7. "having sex dreams of people you work with makes for an awkward day."
8. "smoking weed at work is so [EDITED] great :)"
9. "It's bad when you overhear the n00b programmer say "I used to work at McDonalds with him" and you wonder if he is talking about the CEO..."
10. "Huh, with my boss on twitter, maaaybe I should take down that sexy picture of her... but her reaction will be priceless!"

According to the ABA, "[m]anagement-side employment lawyers are advising their clients against writing recommendations for current or recent employees on LinkedIn." Apparently, a positive recommendation by an employer on LinkedIn could be offered as evidence to support a discrimination claim. The employee could offer the LinkedIn recommendation as evidence to refute an argument that poor performance caused the employee's subsequent termination. The ABA article cites another article by the National Law Journal. According to the NLJ, plaintiffs' lawyers may be "scouring these sites, looking for evidence to dispute firings, as most LinkedIn recommendations are positive."

So what's a supervisor or employer to do? Carolyn Plump, a partner at Philadelphia's Mitts Milavec, answered this very question for the NLJ. "Just don't do it," Plump said. "Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something." Plump went on to observe the Catch-22 of substantive recommendations by saying, "If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit."

So, what's the lesson for young lawyers? Don't be upset if that partner you've been working for the last three years won't write you a LinkedIn recommendation. Also, if you happen to be going into employment law, advise your clients against the practice of making LinkedIn recommendations. All lawyers should take this from this YLB post: opposing counsel and potentially opposing counsel are savvy, sophisticated and aware of social networking sites as a fertile medium for evidence.