When Social Media Goes Wrong: Hypomastia
If you're not looking up every defendant in a civil case, or your own client, you're doing a disservice to the client. Here's a story from Above the Law about how a little sleuthing went a long way.
Many large law firms forbid their lawyers from visiting social-media sites at work. Some have actual software blocks, preventing sites like Facebook, Twitter, and LinkedIn from loading on firm computers. Other firms tacitly discourage visiting these sites, since six minutes wasted on them are six minutes that could have been billed.
Small firms are less likely to have these policies or blocking programs, mainly because small firms are less likely to have any policies. Or IT departments.
This is partly a generational issue. On the one hand, you’ve got the Millennials, who are used to having IM chats, Pandora songs, and Facebook walls running in the background while they bash away at Lexis or Microsoft Word. On the other hand, you have more-senior (or just plain ‘senior’) lawyers, for whom the Interwebs are something to either be feared or restricted to off-duty hours.
Generationally, I’m somewhere in between. I’m 43, placing me at the early end of Generation X. Millennials make me feel old. When I started hiring twenty-something lawyers, I found their IM chats in the background jarring. But I quickly learned that this had no impact on their ability to get work done. They were far more able to multitask than I was, and it seemed silly to make a rule about social-media sites.
Also, a facility with social media comes in handy in a litigation practice. For example, several years ago, a client of ours fired an employee for taking unauthorized time off. The young female professional sought a leave in December to have some elective surgery — to wit, breast implants. (Note for law students: The phrase ‘to wit’ must never be used unironically. And if you ever find yourself writing ‘to wit: a shod foot,’ you need to leave the practice of law immediately.)
The young woman’s employer didn’t seem to a have a fundamental problem with her getting … enhanced. The problem was the timing. The holiday season was their busiest time of year, and they couldn’t afford to lose her then. But she went and did it anyway, and they fired her for the unauthorized leave.
You can imagine what happened next….
She lawyered up, of course, and her counsel sent a demand letter accusing them of disability discrimination under the Americans with Disabilities Act. You see, according to her lawyer, she suffered from the debilitating condition of ‘hypomastia,’ which required her surgery. He would promptly file a lawsuit unless they paid her … wait for it … one meel-y-ion dollars. (He probably didn’t write it that way in the letter, but that’s how I remember it, right down to the Dr. Evil accent.)
Before responding, we decided to do our own research. First we learned about hypomastia. The term is from the Greek for, no kidding, ‘small breasts.’ Now I’m no doctor, but our research suggested that hypomastia was a ‘diagnosis’ (complete with scare quotes) often favored by plastic surgeons trying to get their patients’ cosmetic surgery covered by insurance or Medicare. Kind of like ‘deviated septum’ for nose jobs. (Disclaimer: Yes, yes. I know that hypomastia can be a real diagnosis for a real medical condition. Please hold off with your comments about how your second cousin suffered for years with debilitating hypomastia. Actually, who am I kidding? Comments will probably be limited to the ‘show us her rack’ variety.)
So then we turned our research to the woman, and here is where social media came in. Since she was a 26-year-old educated professional in the Northeast, we figured that she might have some kind of social-media presence. This was before Facebook had really taken off, so we decided to check if she had a Myspace page. (For those of you too young to remember, Myspace used to be a network for sharing entertainment and information. Like NBC was. I’m not sure either exists anymore.) To search Myspace pages, you had to have one yourself, so I signed up and instantly became the oldest Myspace user in history.
After a few minutes of searching, we found her page. The problem was, she had set her privacy settings so that only her friends could view her content. As her employer’s lawyer, I was not likely to be included among her friends.
But that’s when Google came to the rescue, plus some luck. Now that we had her Myspace page’s ID number, we Googled it. Turns out, she had only just recently changed her privacy setting. Before the change, anyone with a Myspace account could have viewed all her content. And Google’s search robots had done just that. And cached it. (D’oh.) When we hit the ‘Cached’ link on the Google search result, we hit the jackpot.
We did not find the page of a woman chronicling her struggle with a debilitating condition. Instead, we found a woman going on and on about how she’ll be able to meet more men once she gets her implants. She polled her online friends about what size she should get. She quoted articles from Cosmo about what sexual positions were preferable for larger-breasted women. And the social-media money shot at the top of the page? A working Flash countdown timer, showing the days, hours, and minutes ‘until I get my boobies!’ (Actually, she used four exclamation points, but I can’t bring myself to type that.)
Yes, I know the rule on Above the Law: pictures or it didn’t happen. Here it is:
We burned the entire cached page, countdown timer and all, onto a DVD and sent it to her lawyer. Never heard from him or her again. And it cost a lot less than one meel-y-ion dollars.
So resist the urge to restrict social-media sites on your firm’s computers. Lawyers are knowledge workers. They’re also grown-ups (mostly). You don’t need a policy or a site-blocking application to make sure they’re working. If they’re not working, fire them. But don’t treat them like children, saying, in effect, ‘Don’t go in Daddy’s office.’ You never know when your Facebooking, IM’ing lawyers might save your clients one meel-y-ion dollars.
Jay Shepherd has run the Boston management-side employment-law boutique Shepherd Law Group for the past 13 years. Jay also founded Prefix, LLC, which helps lawyers and clients value and price legal services. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Follow Jay on Twitter at @jayshep, or email him at firstname.lastname@example.org.
(Via Above the Law.)