I could have titled this post: “In case you needed another reason not to use LinkedIn,” but that wouldn’t be fair. No one actually needs any additional reasons not to use that platform. The “grindset mindset,” AI groupies, and other toxic personalities you can find there daily provide more than sufficient reason to let reasonable people know that the less you use LinkedIn, the better off you are. (And, yes, I know that I will have used it briefly today to just publicize this post.)
It also wouldn’t exactly be a fair title because of one of the details of the story I am actually writing about — the existence of a particular local rule that made a lot of difference in the outcome.
But this particular story does provide sufficient underpinning for discussion of a larger topic of overall significance to the ethics rules when it comes to technology usage.
The story involves the imposition of sanctions against a law firm for doing research about potential jurors using LinkedIn. It arises from federal court in the Northern District of California, it involves the imposition of sanctions against a fairly well-known law firm, and you can read the full opinion below:
Now, it is worth stressing again that the court issuing the sanctions order had a standing order that specifically prohibited any use of LinkedIn for the purpose of research about prospective jurors. Thus, for this particular case, knowing how LinkedIn works wouldn’t matter.
In any other context though, knowing the way that LinkedIn works is a helpful educational point about a practical application of what it means to need to have technological competence sufficient to comply with the language in the comment to ABA Model Rule 1.1 which says: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .”
More than five, and fewer than ten, years ago I did a presentation on ethics issues and the use of social media that included a specific hypothetical about a lawyer who used LinkedIn to research the backgrounds of prospective jurors. I did that for two reasons at the time: (1) Tennessee’s RPC 3.5(b) prohibits a lawyer from “communica[ting] ex parte” with a potential juror during a proceeding “unless authorized to do so by law or court order;” and (2) many lawyers did not understand that unless they make changes to their settings in LinkedIn, other LinkedIn users are sent a communication through LinkedIn that you have viewed their profile.
Thus, even absent the California judges standing order, using that platform to investigate information about a prospective juror, much less a seated juror, would present an ethical problem if you haven’t changed your settings so that the platform does not automatically send a communication to the person on your behalf.
All of that being said, the standing order appears to be so strict as to be unreasonable. That judge appears to quite strongly believe that even a notification from LinkedIn that someone anonymously viewed your profile is problematic.
If people post things on social media that are accessible to the public at large (rather than say restricted to “friends” or “connections” or whatever noun a platform uses as an equivalent limitation) then lawyers ought to be free to digest that information if they are trying to determine if someone should sit as a juror over their client’s case. If when that happens, the prospective juror gets a message that says: [person’s name] viewed your profile. That is one thing, and I agree that is sufficiently communicative to be a problem under Model Rule 3.5(b). If it just says that you got a profile view, or your profile was viewed by an anonymous user, or something else that doesn’t reveal who was looking, then that simply cannot be the kind of “communication” the law or the ethics rules should prohibit.
Nevertheless, the overall point remains relevant. Almost every technological tool has a variety of settings about things that happen when you use it if you don’t establish other defaults or invoke other settings. If you are a human being, you should probably familiarize yourself with how those work when using social media. If you are a human being who also is a lawyer, then if you are going to use such things as part of your representation of your clients, you have an ethical obligation to familiarize yourself with how those work.
And, since I am writing this post and refraining from another lengthy post about the trainwreck that GAI is continuing to be for its cost in resources to society as a whole (in addition to the problems for lawyers who continue to use it for stuff it is not good at), but did make a potshot at the outset, I will end with this image cribbed from the Internet that provides a good overall guide on the topic:
[I do not know who first created the above image in order to provide proper credit. If it was you, let me know and I will revise to do so]