First Employers, Now Bar Associations…

We have previously discussed the growing trend among employers to utilize social media sites such as Facebook, MySpace, and Twitter to evaluate and investigate both applicants and current employees.  As social media continues to proliferate among nearly all age groups and through all socio-economic strata, this “fact-finding” approach by employers (and friends and neighbors) will become more and more popular.  Case and point: the Florida Bar Examiners recently adopted a rule that will allow the examiners to review social media profiles of certain bar applicants as part of the “Character and Fitness” review.

This story started making waves around the Internet a few days ago following Kashmir Hill’s post at True/Slant and national attention soon followed as the story was featured on David Lat’s Above the Law blog as well as Law.com’s Legal Blog Watch.

The Story. The Florida Bar Examiners did indeed adopt a rule that allows them to review social media profiles for select applicants as part of the character and fitness evaluation.  Significantly, this new rule does not apply to all applicants to the Florida Bar.  It is surprising to me that the bar examiners would include the limits they thought necessary.  Under those limits, the rule only applies to:

• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”

• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”

• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;

• Applicants with a history of unlicensed practice of law (UPL) allegations;

• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”

• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”

My response: this rule is a good idea and should be expanded to cover all bar applicants.  The rule should be considered and adopted by state bars, government contractors, employers, and anyone else who has access to publicly available information (don’t tell me you didn’t look up the sex offender registry before you bought your last house).  As  long as denied-applicants have access to the specific reasons for their denial and a way to appeal or dispute the denial, the rule is quite sound.  After all, practicing law is a privilege not a right (my apologies to the cliché police).

This isn’t like a potential employer using a credit report or score in the evaluation process.  In that situation, the government has stepped in and said that, because job-applicants typically don’t have free access to their credit reports and because they have little or no control over what gets put in and what gets left out, certain protections need to be put in place.  Thus, based on the recognition that the inf0rmation in credit reports may be helpful to employers, Congress enacted the Fair Credit Reporting Act (“FCRA”) so that applicants and individuals will be adequately informed when their credit report is being reviewed by a potential employer and so that the applicant receives notice when an adverse employment decision is being made based on the information in the report.

But Facebook hardly needs the protections offered by the FCRA.  The last time I sat down and tried to add a blurb to my credit report, well, it didn’t really work out how I planned.  Unlike a credit report, your Facebook and MySpace pages are created by and controlled by–wait for it–you.  The Facebook Beacon fiasco aptly illustrates the difference between user-controlled content and information being shared without the user’s consent or knowledge.

You control what you post on your Facebook Wall; you determine who to add as MySpace Friends; you are the one who is writing those oft-silly (and more often meaningless) tweets.  If you voluntarily make your private information publicly available, you should not be surprised when the publicly available information is discovered by the public.

Candidly, I doubt the bar examiners really care about what you and your friends did last weekend; but they do (and should) care if you said you did one thing but actually did another.  Anyone who has already been subjected to the character and fitness exam conducted by various state bars has probably spent hours tracking down parking and speeding tickets from “infractions” committed more than a decade ago in who-knows-what state or country.

Is this information necessary? No.  Do we supply it? Yes.  Why? Because those tickets are public records and if a bar examiner looks hard enough and finds out that we didn’t disclose them on our applications, suddenly our candor before the tribunal (also known as honesty) comes into question.  And while a parking ticket from 15 years ago isn’t particularly important, dishonesty by an applicant of the bar to the bar is more troublesome.  Just as dishonesty by a job-applicant to its potential employer is a bad way to go about forming an employment relationship.

Like all publicly available information, bar examiners should be able to use social media outlets and profiles in evaluating their candidates.  The bigger question in my mind is why the Florida Bar Examiners are limiting it to Facebook.  As a practicing lawyer, one of the first things I do when we open a new matter is head straight to Google (and occasionally Bing) to vet the names of all the parties and witnesses.  Since they made the information (or compromising pictures) publicly available, they have made the decision to allow the public to access and use the information in any (non-lawbreaking) manner.

The Qualifier (for you people who are ready to rush to the comments and condemn me as anti-privacy):  This discussion is about publicly available information.  I know that the Florida Bar Examiners discussed several options and alternatives (such as requiring the applicant to “friend” the examiner or mandating disclosure of the applicant’s social media site passwords).  Any rule that allows access to information that is not publicly available should have protections, such as those implemented by the FCRA, to safeguard privacy interests.

If you want to limit your publicly-available profile on Facebook or MySpace and only share the details with your friends, you have my blessing when you fight the bar examiners on whether they should be allowed to access your private information.  I would certainly object if the character and fitness committee came asking for access to my journal (as opposed to a publicly available blog — like this one) or if they wanted to read what random high-school acquaintances wrote in my yearbook.

The Takeaway. In my mind, this issue warrants little, if any, debate.  If you don’t want the information that you wrote on that social media site to be available to future employers, bar examiners, or the IRS, don’t hit the submit button.  If you decide that your status update is important enough to be published on Mr. Gore’s Internet, take the necessary precautions to keep it out of the public domain.

This core “issue” is not an issue at all–there are plenty of tangential issues (such as how to handle information about you that is posted online by a “friend,” acquaintance, or opposing counsel, without your knowledge or consent).  Let’s focus our attention on those more meaningful issues.

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