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A Deputy Tweet, An Attorney Generalís Headache: Balancing Personal Social Media with Public Service
By Brian Kane, Assistant Chief Deputy Attorney General, Idaho Office of Attorney General
Believe it or not…it’s not just Charlie Sheen! From star athletes, to movie stars, to politicians, you have undoubtedly read of someone’s “open mouth, insert I-Phone” gaffe. Guess what? As public servants we are under a similar microscope and equally prone to these types of gaffes.
Recently, Attorneys General have had the spotlight thrust upon them by assistant or deputy attorneys general exchanges over the Internet or even an Attorney General’s own “tweet!” This piece will provide some examples of conduct to be aware of, avoid, and make a few suggestions on how to handle social media within an Attorney’s General office.
Boom! That Just Happened…
For example, an Indiana deputy attorney general was dismissed for tweeting from his personal Twitter account that riot police should “use live ammunition” against protesters in Wisconsin. Surprisingly, this is not an isolated incident. Attorneys General have found themselves in the news for subpoenaing Twitter accounts critical of their office or politics, assistant blogs that are hateful or harassing, and even an assistant who impersonated his wife’s coworker to set up trysts on Fling and Adult Friendfinder, resulting in her being contacted without her permission with lascivious requests. Each of these scenarios wound up the same way—front page news and a deputy or assistant out of a job.
It Happens To Everyone
Not surprisingly, no one is immune to social media missteps. For example, an attorney asked for and received a continuance to attend a family member’s funeral. While “attending the funeral,” the attorney updated her Facebook page with pictures and statements about partying the entire week of the continuance. The attorney, after returning from her “grieving”, sought another continuance. The judge, who as a “friend” on Facebook had noticed the attorney’s updates, not only denied the request for a continuance, but also presented the attorney with printed copies of her Facebook pages and reported her to the state bar.
Judges, it appears, are equally human. In North Carolina, a judge was issued a Public Reprimand for exchanging posts on Facebook with an attorney appearing before him. The judge “friended” the attorney after an in chambers discussion with opposing counsel (who indicated unfamiliarity with Facebook) about Facebook. Included within the posts following the judge’s “friending” of the attorney, was the following exchange (A= attorney, J= judge):
A: How do I prove a negative?
J: Two good parents to choose from.
J: Terry feels he will be back in court.
A: I have a wise judge.
Other exchanges followed, and the judge additionally “googled” one of the parties’ websites and stated on the record that he enjoyed her photography and poetry. This resulted in the judge being issued a formal reprimand by the North Carolina Judicial Standards Commission, most notably for engaging in ex parte contact and independent ex parte research about a party before the court. In this instance the judge let down his guard based on both the casualness of social media contact, as well as the ease with which independent research can be conducted. Both attorneys and judges need to be guarded as they interact through social media to insure their conduct remains above reproach.
Be Aware of Courtroom Tweets and Facebook Issues
In Arkansas, a mistrial was declared after it was revealed that a juror had tweeted: “Nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.  In another case, a juror tweeted himself off the Chandra Levy murder trial jury by tweeting: “Guilty, guilty…I will not be swayed. Practicing for jury duty,” prior to being sworn in as a juror.
Perhaps the greater risk to attorneys, are jurors and/or judges who self-research. Prior to the Internet, it would have been an extremely difficult undertaking in most instances for a juror to independently investigate the various components of a trial. The Internet, and particularly social media, has made such an undertaking routine. Think about the ease with which a juror can google the parties or the attorneys in a case, or look up a claimed medical condition and then inject those extra-record influences into the jury box.
The simple solution upon learning of a juror’s independent research would be dismissal. But recently in Florida, upon learning of an individual juror’s research, the judge questioned the rest of the jury and learned that eight additional jurors had done their own research. Within the Florida case, the mistrial was declared after eight weeks of trial—a tremendous burden on both the court system and the parties involved, but after the juror’s research resulted in consideration of evidence specifically excluded, as well as discussions with the other jurors, no alternative was left.
Find the Right Balance
As demonstrated above, social media likely cannot be ignored or avoided. The challenge for Attorneys General is striking the appropriate balance between the usefulness of social media as a resource and the risk of unintended consequences. With this balance in mind, Attorneys General along with their deputies and assistants can consider the following:
1. The Internet and social media are open and accessible—in other words, if you can find it on the Internet so can others.
2. Social media may be subject to Public Records Laws, and if information is being exchanged through these sites, there may be Open Meeting issues as well.
3. Maintain professionalism—the Rules of Professional Conduct and Judicial Code follow you online. Professionalism also means that attorneys need to act professionally online.
a. Prohibit the use of office titles, addresses, references in any social interaction other than official office communications.
b. Your title follows you everywhere—folks know who you work for and so your social interaction is a direct reflection on the Attorney General.
c. Any blog, Twitter account, Facebook page or otherwise that gets the attention of the Attorney General is most likely a bad thing.
4. Consider the use of one networking site for professional contacts and another for purely social.
5. Remember CONFIDENTIALITY!!! (And remind your clients, too!)
6. Don’t let social media destroy your credibility.
7. Do use it to research clients, jurors, witnesses, etc.
8. Do not pretext to do so.
9. Be aware of the perceptions created by who your “friends” are.
10. Remember to inquire as to social media in voir dire, monitor during trial, and disclose immediately to a judge any misconduct.
11. Do not attempt ex parte contact through social media.
12. Humor (particularly sarcasm and satire) do not work online—for every person who gets the joke, there will be 10 who don’t and are offended.
Social media brings the world to your doorstep, but it also brings you to the world. As a powerful informational resource, social media and the Internet carry with them a responsibility for appropriate use. By striking the appropriate balance, attorneys and judges can harness this unparalleled resource, while remaining compliant with their respective ethical requirements.
 Public Reprimand, B. Carlton Terry, Jr, District Court Judge, Judicial District 22, North Carolina, No. 08-234, March 25, 2009.
 Id. at ¶ 3.
 Id. at ¶ 5.
 ID. at ¶¶ 7 & 8-13.
 Id. see also North Carolina Code of Judicial Conduct Canon 3A(4).
 Prospective Juror Tweets Self Out of Levy Murder Trial, Oct. 22, 2010, available at: http://www.nbcwashington.com/news/local-beat/Prospective-Juror-Tweets-Self-Out-of-Levy-Murder-Trial-105553253.html
 John Schwarz, As Jurors Turn To Web, Mistrials Are Popping Up, NY Times, March 17, 2009, available at: http://www.nytimes.com/2009/03/18/us/18juries.html