In the last issue of Lawyers Alert, this Tech Central column touched on some recent difficulties within the legal profession in dealing with the emergence of technology in so many aspects of law practice ("Tech Central: Twittering Jurors"). A few recent cases and developments have highlighted those difficulties even further:
No more Wiki-evidence - Earlier this year, a Federal Court judge chastised Canadian immigration officers for citing, and apparently relying upon, Wikipedia entries about the origin nations of immigration applicants, as they denied their applications (see Jahazi v. Canada, 2010 CarswellNat 454). It was not the first time a Canadian judge had been critical of the reliability of Wiki-based evidence, but the fact that such evidence continues to show up in courtrooms indicates the degree to which Wikipedia has become the unofficial king of all research.
Facebook and MySpace compellable evidence? - This is not necessarily a novel development from a strictly evidentiary standpoint, but most social media users might be surprised to learn that their profile pages and accounts are compellable evidence in civil court matters. Recent Canadian and U.S. jurisprudence has confirmed this compellability, in some instances compelling the disclosure of "status updates" and photographs that would tend (for example) to dispute a plaintiff's claim of injury and/or disability.
Is it o.k. for judges to join Facebook? - The Ethics Committee of the Kentucky Judiciary recently issued a Formal Judicial Ethics Opinion answering with a "qualified yes" a judge's inquiry as to the propriety of his being a member of Facebook, and being "friends" with various persons who might appear before him in court. The Ethics Committee determined that such activities do not reasonably convey an air of potential bias or undue influence upon the judiciary. Judges were reminded, however, of the high standard of conduct expected of them in these public interactions. This is in contrast to a report of the Florida Supreme Court Judicial Ethics Advisory Committee, which determined that it is not acceptable for judges to "friend" lawyers who might appear before them in court. Clearly, this issue is far from settled. The Canadian Judicial Council is said to be monitoring the issue, though no formal guidelines have been drafted as yet. The reports can be found at:
http://courts.ky.gov/NR/rdonlyres/FA22C251-1987-4AD9-999B-A326794CD62E/0/JE119.pdf
http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html