Generation J.D.

Why some people take pride in the fact their Facebook profile emulates an episode of Tosh.0 is beyond me. (I am not saying that I don’t watch the show and laugh hysterically. But, simultaneously, I do wonder why people put some of this stuff up on the Internet for the entire world to see.)

While Facebook has been in the news recently for its upcoming IPO, another story, about Facebook privacy, caught my attention on the radio as I was brushing my teeth this morning. Apparently, Facebook is still working on deleting photos from its servers in a timely manner nearly three years after the issue was brought to Facebook’s attention.

Have you ever deleted a horrific photo on Facebook that was posted by a “friend?” Well, you may not have really deleted it. Photos “deleted” from Facebook seemingly never go away if you have a direct link to the image file on Facebook’s servers. Just imagine the joy felt by those individuals who had the common sense or foresight to delete photos because they didn’t want retaliation from an employer, wanted to avoid family drama or uploaded a photo of a friend without permission, to name a few reasons, when they discovered the photo would remain accessible for an indefinite amount of time as long as someone had a direct link to the .jpg file in question.

A few months ago, I had to research the discoverability of information and data on a Facebook (or other social media) account and profile. From the limited guidance published by a few jurisdictions, it seems that a party would likely succeed in requesting Facebook information and data during the discovery process. The court’s interpretation of federal Rule 26(b)(2)(c) allows for an extremely broad scope of relevancy.

While Maryland courts have not ruled on this broad scope of relevancy as it pertains to social media discoverability pursuant to Rule 26(b)(2)(c), it has ruled on its reliability and authentication. In April 2011, the Maryland Court of Appeals reversed the conviction of Antoine Griffin, which was based on evidence gathered from a MySpace profile of Griffin’s girlfriend. The Court of Special Appeals had ruled the police officer proffered by the state as an authenticating witness was sufficient to authenticate the MySpace profile printout. (A law professor from Chicago gave a great summary of this case on his blog and I will highlight some points here.)

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A friend of mine mentioned recently that people generally either don’t use social media at all or use it as a replacement for traditional networking. (Actually, she will now be writing an article on that hypothesis for an upcoming issue of the MSBA YLS’s Advocate. Keep an eye out for that.)

That said, we’re all aware of social media as a “hot topic” for the year. Most of us use social media of some kind, for better or for worse. Most of us also wonder why and how to use social media. There are plenty of articles out there about how to conduct yourself online, how to develop relationships online and how to use social media in connection with litigation.

With all the excitement surrounding social media, it’s easy to forget about the dangers. To name a few, the Federal Trade Commission is starting to investigate bloggers who receive benefits for namedropping in their posts. Obviously, unscrupulous posts can put your reputation in question (it can also help you repair your reputation). There are security risks. And, yes, what you say online can still be used against you in a court of law (if it is properly authenticated, that is).

Despite those dangers, we seem to have become generally comfortable in this new way of communicating and are now focusing on how to most effectively exploit it.

What we lawyers cannot forget is that the rules of our profession still apply. For example, the American Bar Association’s Rules of Professional Conduct provide guidelines on advertising, providing information about legal services, maintaining confidentiality and communicating appropriately with opposing parties, whether they are represented or not.

And state bars are enforcing these ethical guidelines. A state court judge, for instance, was reprimanded for “friending” a lawyer” in a case he was presiding over.

In practice, it is even more complicated than you might think.

While social media provides us young attorneys with many great opportunities — to highlight risks and benefits of developing technologies for our colleagues and our clients; to network from the comfort of our couches; to maximize the reach of our marketing efforts—we cannot use social media now like some of us used to.

Now, we need to think before we friend someone, before we post, before we comment on someone else’s post and even before we “like” something. We must anticipate the unintended consequences of what we do and say online.

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My five-year-old son and I are very much alike. We are both oldest children in (relatively) large families. We have the same name. We share the same interests (Go O’s!). We also look alike and have similar personalities. All of this means that it is sometimes extremely difficult for me to be his father. As my mother tells me, this is payback.

My son was born as I was finishing up my first year of law school. As we all heard numerous times during our first years of law school, going to law school teaches us how to think like lawyers. I agree whole-heartedly and frankly, I have trouble remembering how I engaged with any subject — politics, sports, cooking — before law school. This also means that I have thought like a lawyer for the entire time I’ve been a father.

Unfortunately, thinking like a lawyer doesn’t always help me to be a better father. For example, my son often tells me that a directive I have given him — clean up his toys, turn off the TV — is “not fair.” For a long time, I made the time-consuming mistake of explaining to him why what I had asked him to do (or stop doing) was, in fact, completely fair. My wife would roll her eyes knowingly or glide behind me and whisper that I should stop wasting my time. She was right, of course. I only aggravated my son and myself by trying to explain.

My next step was to agree with my son. When he told me that something wasn’t fair, I would immediately tell him that he was right and it wasn’t fair. This worked well… the first few times. Thereafter, my son began retorting “it’s fair to you!” Initially, I stifled my laughter and continued with my plan of telling him he was right and agreeing with him that my order was fair to me but not to him.

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I ran across a thought-provoking article a few weeks ago: “High-achieving women need more than a bubble bath.” By “high-achieving” women, the article means women who are accomplishment-focused and achievement-oriented— yes, that includes you, my fellow attorneys!

Actually, I found the article — as well as the book on which it was based — to be eerily accurate, as did a few friends of mine.

The article refreshingly recognized the traits of “high-achieving” women are much the same as those found in “high-achieving” men. The difference is in the assumptions that tend to underlie women’s thought processes. Assumptions such as “I have to prove myself to everyone,” “I can’t relax until I finish what I have to do,” and “I should be able to manage it all and accomplish it all without feeling stressed or tired.”

Now, I’m not sure that I would agree that these assumptions are uniquely held by women. I think the assumptions are fairly commonplace in the legal field where, as one article states, “My boss wants innovation as long as it’s done perfectly the first time.”

But I do agree the stress invoked by operating under these assumptions cannot be solved — at least not in the long-term — with bubble baths or vacations.

It makes sense that it isn’t as much about getting rid of the stress; it is about building “stress resilience.” Don’t try to make everything balance perfectly — it is more of a constant give and take, a juggling act, if you will.

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The weather has been warmer than normal in Maryland this winter season, but Jan. 28 at Sandy Point State Park, I don’t think I will be thinking about the abnormally warm weather or the fact that the Chesapeake Bay is one- or two- degrees warmer as a result.

Most likely, my thoughts will range from, “Why am I doing the Polar Bear Plunge again?”, “When — or will — I get the feelings in my fingers and toes back?”, and “Should I do this again next year?”

I recently had a discussion with a colleague regarding my quasi-work related commitments, which include work with the Maryland State Bar Association, Baltimore County Bar Association, and construction-related trade organizations.  (Polar Bear Plunge falls under the MSBA.)

“Why get involved,” he asked, “when it takes time away from work or family or recreation?”

My response: first, it is work-related; and second, it’s for a good cause. Taking part in activities, both substantive and for pleasure (if jumping into 33-degree water can be defined as pleasurable), with bar associations and trade organizations is work. These activities are part networking, part marketing and part educational.

There are obvious benefits to being active in a trade organization that may lead to potential clients, but bar associations participation also leads to referrals and business development. Further, it’s surprising how one bonds with his or her fellow attorneys after spending 10-to-20 seconds in freezing cold water together.

Additionally, most bar association work falls within the “good cause” category. Whether it is the betterment of the profession or raising money for the Maryland Special Olympics or providing pro bono assistance to individuals in need, there are a number of reasons why an attorney should be active in their local and state bar associations.

So, for me, plunging into the deep blue bay on a cold day in January to raise money for the Maryland Special Olympics is just another day at the office. If you are interested in taking the plunge, check out this flyer and sign up.

Photo courtesy of the Maryland Special Olympics

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Today, Jan. 17, Muhammad Ali turns 70 years old. Of course we know Ali as one of the best athletes of all time. But history’s greatest boxer and most prolific hype man was more than mere physical talent and boastful, colorful rhetoric. So awesome were his accomplishments in the ring that his fights outside the ring rarely get attention.

More went on in 1971 for Ali than “The Fight of the Century”; that year he was also fighting for religious freedom and his principles against the Vietnam War. Four years earlier, Ali refused the draft as a conscientious objector, was almost immediately stripped of his heavyweight title and was convicted of being a draft dodger. Ali knew the risk of his stance and — for a man who knew nothing else at the time but boxing — this was a hefty price to pay.

But clearly, Ali was a fighter inside and outside the ring. In exile from the sport, Ali resorted to speaking engagements at college campuses around the country. Although the reviews were mixed, he added tremendously to the debate about the war and came to symbolize something that transcended boxing.

Ali “helped give an entire people a belief in themselves and the will to make themselves better,” the late Arthur Ashe said. “But Ali didn’t just change the image that African-Americans have of themselves. He opened the eyes of a lot of white people to the potential of African-Americans: who we are and what we can be.”

While gradually able to make his comeback in the ring, Ali nevertheless continued his fight in the court — all the way to the U.S. Supreme Court, where he won. While the court’s unanimous opinion in Ali’s favor was grounded in a technicality, a behind-the-scenes look at the case reveals the true basis of the decision and the court’s inner-workings. The Brethren, co-authored by Bob Woodward and Scott Armstrong, details how the court came to its unanimous decision despite the recusal of Justice Thurgood Marshall.

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