Monday, 16 April 2012

Can My Facebook Photos Negate My Good Fame and Character?

Dr Catherine Bond

Teachers of legal ethics are to some extent used to the unusual questions that arise in classes on procedures and policies for admission to practice as a solicitor or barrister. In many instances this class will be a student’s first exposure to what happens post-law school and the requirements that the student be both eligible to be admitted (having previously completed the requisite academic qualifications and practical legal training) and are suitable to be admitted, on the basis that he or she is a ‘fit and proper person’. A fit and proper person is defined to include a person of good fame and character, who is not insolvent, has not previously practised in Australia or overseas without a practising certificate, or who has not previously committed an offence. Perhaps understandably, when students become aware of these rules, closets full of skeletons past begin to open and nervous students begin to question whether this or that incident could have an impact on his or her admission to practise law.

Great emphasis has been placed in New South Wales and more generally on the act of disclosure: that an applicant disclose any prior or current behaviour that may negate their good fame and character, ranging in activities from receiving a transport fine to a finding of plagiarism while at university. The forms that potential solicitors must complete are geared towards this act of disclosure, containing a number of general conduct statements that, if one is not true about the applicant, requires the applicant to ‘strike out’ and disclose the circumstances as to why that statement may not be true. The consequences of a failure to disclose can often lead to a decision by the Legal Profession Admission Board to not admit an applicant or, if the failure to disclose is found following admission, to be struck off from legal practice.

In a recent class a discussion arose as to what impact the existence of photos on Facebook may have on an applicant’s good fame and character. The debate follows a recent flurry of reports in the media of employers asking for the username and password of potential employee’s Facebook accounts as part of a virtual ‘background check’. In turn, Facebook has advised its members not to disclose such information. The student’s question was therefore quite topical: if employers are interested in what is on a potential employee’s Facebook page, then surely the Legal Profession Admission Board might be, particularly given that many individuals have photos depicting events and other information available via that social networking site that may ultimately negate their ‘good fame and character’?

Public embarrassment from Facebook photos is not a new phenomenon; Australia’s ‘public figures’ have in the past had photos posted either by themselves or their ‘Facebook friends’ published in the media. In 2008 a number of provocative photos of Olympic gold medallist Stephanie Rice that appeared on Facebook were subsequently published in a number of Australia’s major newspapers, tarnishing both the public ‘golden girl’ image of Rice and also her then-boyfriend, fellow Olympic swimmer Eamon Sullivan. Rice’s subsequent 2010 experiences with Twitter, which culminated in a teary press conference where she publicly apologised for her offensive tweet, further indicate the damage that an over-exuberant use of social media can cause.

Yet it is becoming difficult to avoid social networking if students want to keep informed about events going on in law schools, universities and law firms, with an increasing number of public and private organisations either creating Facebook pages or Twitter feeds to notify interested parties of news, legal updates and events. In England the UK Supreme Court has an official Twitter feed where the release of decisions are posted, questions answered and job opportunities with the court listed. Indeed, it is likely that, with the greater proliferation of both Generation Y and the ‘digital generation’ into the workforce, this trend will both continue and grow. Thus, on the one hand, social networks are a valuable source of information for students, but on the other, they have become areas where students may not use these sites for their primary purpose – ‘networking’ and connecting with friends – for fear that their activities may be accessed by potential employers or ultimately affect admission to legal practice.

It appears that today’s students must find a balance between a fleeting moment that may have affected their ‘good fame and character’ and the permanent digital capture of that moment on Facebook. In any event, we may be moving towards a system where potential solicitors have to disclose what is on their Facebook pages.

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