NYSBA Annual Meeting Hits Hot Topics of Wrongful Convictions and Attorneys Use of Social Media

The New York State Bar Association (NYSBA) had its annual meeting in New York City this week. For the past number of years the meeting has featured a Presidential Summit at which the Bar President chooses hot topics of the day for a distinguished panel to discuss. This years topics were wrongful convictions and attorneys use of social media, which centered mostly upon issues of privacy and the internet.

I was fortunate this year to be able to attend the Presidential Summit for the first time, and it was well worth the time (I shouldnt say it was well worth the price of admission because attendance was complimentary to meeting registrants). Social media was the first topic discussed. Most surprising was that in the context of using social media and the internet in general, the normally dry topic of ethics becomes not only somewhat interesting, but also something that if ignored can lead to some real headaches. For example, although using Facebook and Twitter can be intriguing for lawyers and can be an effective marketing tool, lawyers must be careful to avoid inadvertently giving legal advice or unintentionally establishing an attorney-client relationship.

Another concern is the issue of privacy. This too can be an unwitting hornets nest because people, not only lawyers, underestimate the potential for information posted on the web to be almost infinitely re-transmitted across the world wide web. One cannot be too careful to be familiar with the privacy policies of any website where information is posted.

In this regard there was some brief but intense discussion about Facebook’s new (as of December 2009) privacy settings and the fact that the default setting on all of the categories is Everyone. That means that whatever you post can be seen by anyone on Facebook. For lawyers, the utmost precaution must be taken to eliminate the risk of inadvertently disclosing a client confidence. Everyone on Facebook should carefully check all (there are many and some are hidden behind others) of the privacy settings on their account. Also brought up by the social media panel were the tough new FTC regulations concerning advertising, particularly expert and celebrity endorsements.

The panel had no doubt that the FTC would move to aggressively enforce compliance with the regulations. Interestingly, the panel at the Entertainment, Arts and Sports Law sections annual meeting that I attended (this one attendees had to pay for) also brought up the new FTC regulations and expressed dismay at how the broadness of the regulations might force advertisers to become ridiculously cautious.

The wrongful conviction discussion was extraordinarily interesting. The panel included an exonerated convict who was able to give gripping insight into the ramifications of an improper conviction. Video clips from other exonerated convicts who spent a large portion of their lives in prison were also movingly presented. It seems that a lot more will be heard in the future about wrongful convictions a problem the depths of which are just beginning to surface.

The NYSBA and New York State have sought to address this issue. The bar association had a task force analyze the issue and report thereon. More recently, Chief Judge Jonathan Lippman created a permanent Justice Task Force to examine the causes of wrongful convictions and develop systemic remedies to minimize them and to make the states criminal justice system more effective.

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