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ON ETHICS: Sometimes the first will be last and the last first

By: NATE CADE//December 8, 2015//

ON ETHICS: Sometimes the first will be last and the last first

By: NATE CADE//December 8, 2015//

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Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at
Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at [email protected]

Although I have written before about social media and ethics, a recent court order has me thinking yet another admonition is in order.

Lawyers are trained to be quick to provide answers or information to their clients. Speed creates value. And that’s what we want to do for clients, because when they find themselves in need of help, we hope that the value we had previously created gets us that first phone call.

If nothing else, it should help keep us first in the minds of former clients and make us stand out from the pack for prospective clients. But, unfortunately, sometimes in the world of social media — as it is written in the Bible — “the last shall be first, and the first last.”

A case in point — a young partner in the Chicago office of an Indiana-based law firm found himself in hot water recently over some of his tweets. His transgression? He was live tweeting during a trial in the North District of Illinois.

Unfortunately, his short messages were sent out during the trial of a commodities trader who stood accused of market manipulation (“spoofing”). The trader’s alleged transgressions involved rapidly placing orders and then subsequently cancelling them, a maneuver the Feds apparently don’t like.

What about live tweeting, though? It doesn’t sound so bad, right?

Oh yeah, one thing I forgot to mention — U.S. District Court Judge Harry Leinweber had issued an order specifically forbidding the use of phones in his courtroom.

Then again, it is somewhat understandable that a lawyer who was apparently so giddy to watch this trial might not have first thought to log into PACER to pull that particular court order. Yet, even with granting our young transgressor that benefit of the doubt, how do we explain his overlooking the 4-foot sign hung outside the courtroom?

Written in all caps, it clearly proclaimed, “Photographing, recording or broadcasting is prohibited.” Before we rush to condemn him, though, we should keep in mind that it’s not as if this lawyer was tweeting from a trial in which he or anyone from his firm was directly involved as an attorney of record.

No, here he was nothing more than a spectator. Clearly, the subject matter of the trial interested him (at least I think it did from what I can discern from his online bio and some of his other tweets from that day). So while the trial was unfolding, he apparently thought it a good idea to be the first to broadcast reports on the proceedings.

The goal, no doubt, was to provide something of value to his 224 Twitter followers (yes, you read that number correctly). And he succeeded to an extent.

For proof, we need look no farther than his current number of Twitter followers. As I write this article two weeks after the fact, I see that it has doubled.

Unfortunately for this young partner, the Chief Judge in the Northern District of Illinois has now requested that he again be first — the first in line for an order to show why he should not be sanctioned. Zoinks!

Clearly this was a screw-up. The natural question then is: What lessons can be drawn from this Twitter fiasco? Well, obviously, one is that lawyers should obey court orders at all times. For some reason this partner thought he could get some much needed “street cred” (seriously, fewer than 225 followers?) from showing that he was Johnny on the Spot and reporting breaking news.

I mean, who could fail to feel the tension that was no doubt present in the courtroom after reading tweets such as: “#hft in the spotlight” and “We have been watching the prosecution and the defense at the Cosica #HFT spoofing trial”?

A second obvious lesson this smackdown teaches us is to think before we act. One thing we should all know by now is that our ability to get a smartphone into a courtroom does not in itself justify informing the world of everything we witness.

Along the same lines, just because we might have thoughts running through our heads, it does not necessarily follow that it is wise to begin broadcasting them. Although having a quick answer or social post could arguably create value for clients, being the first to comment on something is at the same time not always a sign of intelligence.

Sometimes it could just make you the first person to get in trouble, which could be long-lasting, since posts on social media tend to stay around forever.

Finally, it’s important to remember that if you are going to persist in thinking that being the first to broadcast information on social media will help you create value and have your clients, colleagues and the rest of the world take you seriously, you ought to have more than 225 Twitter followers. Seriously. A Twitter account about Kim Kardashian’s shoes has more than 1,500 followers. Just saying.


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