SNCE Jessica Johnson (far right) moderates the first panel discussion on ethics and social media with, from left to right, Patricia Lowry, James Hopkins, Carolyn Bell, and Jan Jacobowitz.
Panelists Robert Fine (left) and Matthew Dietz (right) expressing their passionate views about website accessibility for the disabled community on the second day of the Symposium.
Miami Law Review Members enjoying a sit down lunch alongside panelists and guests on Day 1 of the Symposium.
BY KATHRYN YANKOWSKI — The Miami Law Review hosted its annual symposium February 16 and 17 in Coral Gables. This year, students, academics, judges, and practitioners examined the evolving legal landscape around social media, from IP issues to a discussion of who inherits your Facebook page when you die.The symposium began on Friday, February 16, 2013 at the University of Miami’s Storer Auditorium. The first panel, moderated by UMLR Senior Notes & Comments Editor Jessica Johnson, kicked off the event with its discussion entitled, “Can Judges Be Friends (on Facebook)? Ethics and Social Media.” The panel was comprised of four distinguished legal professionals: Jan Jacobowitz, Lecturer in Law and Director of the Professional Responsibility and Ethics Program at the University of Miami School of Law; Carolyn Bell, Assistant U.S. Attorney at the West Palm Beach United States Attorney’s Office; Patricia Lowry, Partner at Squire Sanders and Past Chair of the Supreme Court of Florida’s Judicial Ethics Advisory Committee; and, as he admittedly enjoys being introduced as, Ms. Lowry’s husband, the Honorable James Hopkins, United States Magistrate Judge, Southern District of Florida.
The panel offered interesting views and anecdotes on how social media has generated ethical dilemmas for lawyers and judges, in and out of the courtroom. Whether a lawyer tweets about his or her pending trial, a judge “friends” a party in his or her docket, or a suspect updates his Facebook status to incriminate himself, our virtual world has injected tremendous uncertainty into modern professional standards of conduct.
In the panel, Bell discussed how society’s compulsive use of social media assists the government in obtaining evidence against the accused. Yet on the flip side, Lowry shed light on the gray area lawyers face when unfavorable information about their client is uncovered on the Internet (and how technology makes it possible to bury that evidence). Judge Hopkins recounted how his experiences in the courtroom have evolved with the rise of social media as attorneys request ever more expansive “fishing expeditions” to e-discover online information. Wherever the fine line between ethical responsibility and technological adaptability lies, Professor Jacobowitz left the audience with one rule of thumb in such unchartered online waters: Use your common sense, and if you have any doubt about how appropriate that status update or tweet is, don’t post it.
The following panel, moderated by Professor Michael Froomkin, discussed the so-called “digital afterlife.” Panelists included Christina Kunz, Professor at William Mitchell College of Law; Michael Mcguire, Chief Information Security Officer and Shareholder at Littler Mendelson P.C.; Damien Riehl, Attorney at Robins, Kaplan, Miller & Ciresi, L.L.P.; and James Lamm, Attorney at Gray Plant Mooty. The panelists shared their views on the intriguing concept of the legal rights to individuals’ digital property post-death. The panel seemed to agree that a virtual afterlife surviving on social media platforms is not only a possibility, but is now a certainty. With Web sites introducing technology that enables subscribers to assign their rights to their digital property upon death, our tweets and posts are now written in immortal ink.
John Browning, founding party of Lewis Bisgaard & Smith in Dallas, Texas, and author of The Lawyer’s Guide to Social Networking, Understanding Social Media’s Impact on the Law, delivered a lively keynote speech to kick off the symposium’s second day. He discussed how the volume of tweets, posts, and social media users has rapidly increased within the last four years and how legal professionals are taking advantage of the technology in terms of networking, obtaining clients, and collecting evidence.
The morning panelists, moderated by D. Porpoise Evans, Shareholder at Greenberg Traurig LLP, discussed Web accessibility for the handicapped. Speaking on the unique needs of the handicapped in this increasingly virtual world, each of the four panelists offered expertise on the subject: Matthew Dietz, Law Offices of Matthew W. Dietz, P.L.; Robert Fine, Shareholder at Greenberg Traurig LLP; Eliot Greenwald, Senior Attorney-Adviser for the Disability Rights Office at the Federal Communications Commission; and Mehgan Sidhu, General Counsel for National Federation of the Blind. With more and more traditional brick and mortar stores taking their business online, the panelists recognized how the deaf and blind must receive special accommodations in this virtual world just as they would in a physical store setting.
The last panel of the symposium addressed the topic of Intellectual Property and was led by UMLR ACE David Switzer. Panelists included Ralph Oman, Pravel, Hewitt, Kimball and Kreiger Professional Lecturer at George Washington University School of Law; David Fagundes, Professor at Southwestern Law School and Visiting Profession at University of Miami School of Law; Michael Carroll, Director of Program on Information Justice and Intellectual Property at American University Washington College of Law; and the Honorable Edward Damich, United States Court of Federal Claims, and Lecturer of Intellectual Property Law at Columbus School of Law at the Catholic University of America.
The panelist discussed IP infringement issues that have resulted from heavy use and reliance on social media, and how the law has adapted thus far. Web sites such as Pinterest, Instagram and Facebook provide the public with a convenient forum to post potentially copyrighted material and subvert our country’s IP laws. It is becoming increasingly simple for individual social media users to infringe the intellectual property rights of another, and courts have become overburdened with infringement litigation over the past ten years. Whether it is posting a picture of a celebrity, or downloading a song from the Internet, companies are cracking down on individual infringers by instituting massive class action suits. But, as Professor Fagundes suggested, judges may be feeling “remedy anxiety,” meaning that the heavy fines imposed from the juries’ findings of infringement are viewed as excessive relative to the actual infringing act. Professor Fagundes raised an intriguing discussion on how recently juries have opted for the highest penalties for IP infringers while federal judges have started to question the policy behind substantial monetary damages and whether the punishment matches the act.
On behalf of all UMLR members and candidates, we extend our true appreciation and gratitude to all of the guest speakers and visitors who participated in our 2013 Social Media and the Law Symposium.
