Recent Developments in the Law of Professional Responsibility

Recent Developments in
the Law of Professional
Responsibility: Lawyers
and out-of-court
Misconduct
David Gottlieb
May 29-30, 2014
University of Kansas School of Law
Developments in the Law
Professional Responsibility—The Lawyer and Social Media
Presented by David J. Gottlieb, Emeritus Professor
University of Kansas School of Law
May 30, 2014
The advent of social networking platforms such as Facebook, Twitter and Linked In has
fundamentally changed at least some of the ways in which people communicate. These means of
communication are, at least for the present, ubiquitous. Facebook has a billion users. Americans log
10.5 billion minutes on facebook every day. Twitter now carries upwards of 400 million followers. As of
2009, 70% of lawyers used some form of social media.1 75% of law firms employ social networking
platforms. A different survey reported that 85% of lawyers were reported to have a linked-in presence.
22% of lawyers reported that their firm maintains a blog.
Lawyer Advertising and Social Media
Because these means of communication are now vitally important means by which lawyers
interact with the public, facebook and social media have become tools for lawyer advertising. Their use
should not necessarily be fraught with problems if lawyers understand these media as tools for
advertising in which normal professional responsibility and advertising rules apply. However, aspects of
these new media have presented problems for lawyers and regulatory authorities. Thus, for facebook,
some of the problems have occurred in sites where lawyers “personal” sites include hundreds of
“friends,” some of whom the lawyer does not know. In that setting statements about lawyer practice
may be construed as advertising.2 If so, lawyer speech is subject to the same limitations concerning
accuracy, limits on testimonials, and comments on expected results as more traditional forms of
advertising. During the presentation, I will discuss a recent California ethics opinion that gave examples
of forms of communication that violated California ethics and advertising limits.
In order to avoid false advertising, lawyers must be wary not only of their own posts, but of the
posts of “friends” as well. For business sites, lawyers are responsible for monitoring the content of
posts. Thus if an individual posts false, misleading or otherwise inappropriate comment, the lawyer or
firm has a responsibility to ask the individual to remove the comment.3
Lawyer use of LinkedIn has presented a different problem with respect to advertising rules.
Model and Kansas Rules 7.4 limit the ability of attorneys to claim that they are “specialists” in areas of
legal practice. LinkedIn profiles have invited firms to craft profiles where firms list themselves as
specialists, and individual profiles not only may have such designation, but individuals may be
“nominated” for different categories by colleagues. A series of Ethics opinions have declared that
lawyers must avoid listing themselves as specialists unless they have satisfied the requirements of Rule
1
Lackey and Minta, Lawyers and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging, 28 Touro
L. Rev. 149, 153 (2012)
2
State Bar of California, Standing Committee on Professional Responsibility and Conduct, Formal Opinion 2012-186
(attached).
3
New York State Bar Association, Commercial and Federal Litigation Section, Social Media Ethics Guidelines (March
18, 2014) at 4.
1
7.4. LinkedIn profiles concerning “skills and expertise” should not be considered to be the equivalent of
a specialty, although Florida has reached a contrary conclusion.
The use of Twitter as an advertising platform presents a particular problem. States typically
require disclaimers and announcements of content that may take a reasonable number of words to
convey. Twitter is limited to messages of 140 characters. It may be impossible to convey the correct
disclosure information within the 140 character limit,4 although some commentators have suggested
that the use of standard abbreviations in twitter may make such disclosure possible.
Ethics bodies and writers have also issued repeated warnings to attorneys to insure that
responses made in blogs or social media sites to general legal questions not be taken to be solicitations
and that attorneys make certain that general communication about legal matters or issues not be
construed as creating an attorney-client relationship.5 The New York Social Media ethics guidelines
caution lawyers in instant messaging, chat room or other “live” communication settings not to engage in
conduct that could be considered as soliciting business. The rules state that if a lawyer does receive a
request for help during a social media conversation, it may be legitimate to respond, but that the lawyer
must do so by non-public means.
Lawyers and their “friends”
Review of Evidence on Social Media
Social media are relevant to a lawyer’s work in ways other than advertising. Opposing parties
may have evidence on social media platforms that are relevant to litigation and that would be useful if
obtained by the lawyer. Some of this social media information may be generally available to anyone
who is a member of the network. Accessing such information for the most part may be no different
than accessing public information generally.
There is, however, one caveat that enterprising attorneys need to be aware of. Some of these
informational sites may automatically notify the individual whose material is being viewed of the login.
The information may allow the person whose site is viewed the entire profile of the visiting lawyer.
Such automatic messages have been sufficient to be considered an ethical violation when done by a
lawyer attempting to visit a prospective juror’s site. In any event, the lawyer must be aware of the
possibility that information about herself or her agent is being communicated.
Beyond that issue, facebook and other social media sites may include publicly available material
and material that is “private” in the sense that it is restricted to “friends.” To the extent that the site
contains impeaching formation that may be valuable for the lawyer to see, there is a temptation for the
lawyer to attempt to become the “friend” of the owner of the site. Ethics opinions have attempted to
resolve the circumstances under which a lawyer, agent or client may attempt to “friend” a prospective
adversary or witness to obtain information from that individual’s social media site. The answer may
depend on whether the individual is believed to be represented by counsel in the matter about which
information is being sought.
For the unrepresented information, the principal guidance is provided by Rule 4.1, which
prohibits a lawyer from making a “false statement of material fact” to a third person. At the very least,
that means that the lawyer attempting to obtain access by “friending” another individual is required to
4
5
Lackey and Minta, supra note 1, at 11.
See, Patrick, With Friends Like These, California Bar Journal, April 2014.
2
use his or her name and not attempt to mask her identity. If asked more information, the lawyer should
provide the information requested or withdraw the request.6 Some states have been more demanding,
and have required the attorney or agent to inform the “friended” individual of the lawyer’s involvement
in the litigated matter, or to provide the lawyer’s affiliation or reason for the request.7
Different considerations apply when the individual is represented by counsel. In that case, an
attempt to contact the individual on the matter in question, without going through the individual’s
lawyer, is barred by Rule 4.2. The rule does not prohibit contact by the party himself, but the lawyer
would need to insure that such contact was made honestly and consistently with the state’s position on
non-lawyer contact with represented individuals.
The Judge as “friend”
There has been significant controversy concerning judges and lawyers who appear before them
becoming facebook friends. Outside of social media, it is inevitable that lawyers and judges will meet
and even form friendships. Such friendships, of course, may need to be disclosed in particular cases.
The question of whether similar disclosure obligations exists for facebook friends has created some
uncertainty, perhaps because the universe of facebook friends can be so large, and the actual
“friendship” can seem tenuous at best. Nevertheless, while some (but not all) ethics authorities have
concluded that judges and attorneys can participate in social networks, the same authorities have
cautioned that judges must comply with the Code of Judicial Conduct and avoid any conduct that would
undermine the judge’s integrity or impartiality, or create an appearance of impropriety.8 The ABA ethics
opinion on the subject cautions judges that they may not assume that material communicated on social
networking sites will remain private, and that judges should refrain from any comments which, if
disseminated, would have the potential to compromise judicial integrity or the appearance of integrity.
Obviously, judges should refrain from any case-related comments that could be interpreted as ex parte
communication. Even more broadly, judges should avoid any behavior that suggests that a particular
lawyer is in a position to have undue influence on the judge’s decision.
Social Media Sites and Posts as Evidence
It may be easier to hit a delete key than to shred a document, but it is important for attorneys to
recognize that document retention rules that apply to physical documents may also apply to posts in
electronic media. Kansas Rule 3.4 prohibits a lawyer from “unlawfully” altering destroying or concealing
a document “or other material” having evidentiary value or counseling or assisting another person to do
so. In litigation, a lawyer may have a duty under common law or civil rules to ensure that potentially
relevant evidence is not destroyed “once a party reasonably anticipates litigation.” If a duty to preserve
evidence exists, “a party or nonparty may not delete information from a social media profile that is
subject to the duty to preserve.”9 Where no duty to preserve evidence exists, for example, when
litigation is not pending or reasonably anticipated, a lawyer may more freely advise a client on what to
maintain or remove from a social media website.
6
New York State Bar, Social Media Ethics, supra, at 8.
Id. at 9, citing San Diego County Barr Ass’n Legal Ethics Commission, Op. 2010-2(2011); Philadelphia Bar Ass’n
Prof. Guidance Comm. Op Bar 2009-2 (2009).
8
ABA, Formal Opinion 462, Judge’s Use of Electronic Social Networking Media (Feb. 21, 2013).
9
New York State Bar, Social Media Ethics, supra, at 11.
7
3
Facebook as a semi-public forum
Most of all, lawyers need to be aware that posts on social media, even personal social media
sites, are rarely, if ever truly private. Statements made in a facebook post cannot be assumed to be
confidential, even if the facebook site is a “personal” site. Compromising photos that would damage a
lawyer’s reputation should not find their way to facebook, any more than they should find their way to a
newspaper. Derogatory statements about judges or opposing counsel should not be posted on a social
networking site, since they may be disseminated more broadly.
For example, lawyers must take care not to post comments that reveal confidential information.
An Illinois public defender found herself discharged from work because of blogging posts that disclosed
client information.10 Information responding to negative reviews must still respect client confidentiality.
The posting confidential information led to disciple in In re Skinner, 740 S.E.2d 171 (Ga. 2013), where the
Georgia Supreme Court rejected a petition for reprimand (and imposed more serious discipline) where a
lawyer admitted to disclosing damaging confidential information concerning a client online in response
to an unfavorable review of the lawyer.11 Lawyers have rights to self-defense in cases where actions are
likely to be brought against the lawyer, but this right does not permit a lawyer to simply abandon the
lawyer’s obligation to maintain confidentiality every time a client complains on-line.
More broadly, lawyers have obligation to be truthful and behave professionally in ways that do
not constrain members of the general public. Lawyers are obliged under Rule 8.2 not to make a
statement “that the lawyer knows to be false or with reckless disregard as to it truth or falsity
concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial or legal office.” More generally, it is professional
misconduct for a lawyer to engage in conduct “involving dishonesty, fraud, deceit or misrepresentation,”
engage in conduct that is prejudicial to the administration of justice” and engage in any other conduct
that adversely reflects on the lawyer’s fitness to practice law.” Rule 8.4. Posts disparaging judges that
for non-lawyers could be defended as “letting off steam” have been the basis for professional discipline
when engaged in by lawyers.12 Posts showing “guys gone wild” have come back to haunt litigators
before judges or when seeking other employment. For better or worse, there are some parts of our
professional lives we must attempt to protect even when we are “off the clock.” Lawyers who use
facebook and who wish to avoid professional embarrassment must take care about the information and
photos posted on social media sites.
Attachments
The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal
Opinion No. 2012-186
American Bar Association, Formal Opinion 462, Judge’s Use of Electronic Social Media, February 21,
2013
Commercial and Federal Litigation Section, New York State Bar Association, Social Media Ethics
Guidelines, March 18, 2014
10
Lackey and Minty, supra , at 156.
See generally Harvey, McCoy and Sneath, 10 Tips for Avoiding Ethical Lapses When Using Social Media, Business
Law Today (January 2014).
12
Id. at 166.
11
4