Dr. Seuss, Cheese and Social Media, Part III: Ethical Issues Involving Attorneys and Their Judges


"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers!  Enough is enough!" 

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising.  Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court. 

Since all good things come in threes, we now launch into our final Part Three:  corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

1.  Assisting in Violations of Judicial Rules of Conduct. Attorneys face ethical quagmires when corresponding with judges on social media, since their correspondences with the judge can be found to "assist" the judge in conduct that violates judicial rules:

  • ABA MPC 8.4(f): Attorneys cannot knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.

Does a judicial presence on Facebook, Twitter or other social media, violate rules of judicial conduct? Generally, the answer appears to be no:

"Providing that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network . . . [but] should exercise an appropriate degree of discretion in how he/she uses [the network, and must] stay abreast of the [privacy] features[.]"

NY Adv. Comm on Judicial Ethics, Op. 08-176. Even Supreme Court Justice Stephen Breyer has confessed to being an active user of Twitter and Facebook when he testified on Capitol Hill on April 14, 2011. But he turned down numerous requests from attorneys (and others) who wish to follow and friend him, preferring to stick with family and close friends.

The problem arises when considering who a judge can -- and cannot -- friend. Can a judge friend an attorney who might appear before him, and vice versa? It depends on who you ask.  In Kentucky, New York, and South Carolina, the "designation of a 'friend' on a social networking site does not, in and of itself, indicate the degree of intensity of a judge's relationship with the 'friend,'" so the judge can friend who he or she wishes without any appearance of impropriety. On the other side of the coin is Florida, Fla. Sup. Ct. Judicial Ethics Adv, Comm. Op. 2009-20:

The issue . . . is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a 'friend' on the social networking site, conveys the impression that the lawyer is in a position to influence the judge . . . identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The risk of impropriety -- or even the appearance of it -- is very real. Ex parte communication between judges and attorneys can result in a mistrial. Even a simple Facebook 'Poke' could be problematic.

As one example, North Carolina Judge B. Carlton Terry, Jr. friended defense counsel in a case and discussed the case with him on Facebook, including the weight to be given testimony that one spouse had been unfaithful. "How do I prove a negative?" the defense attorney  asked. The judge provided advice and the attorney called him a "wise judge". The plaintiff's lawyer found out and moved both for a new trial and the judge's disqualification. The judge removed himself from the case and the plaintiff got a new trial. The judge also earned a reprimand from the state Judicial Standards Commission. The attorney, who assisted the judge in the reprimanded conduct, could probably have been sanctioned for violation of Rule 8.4(f) as well.

As a result of this incident and others, judges have begun to use caution when engaged in social media. Most  (a) tend to friend everyone who asks, in order to avoid the appearance of impropriety, (b) not friend attorneys who may appear before them; or (c) only friend family or close friends.

2.  Questionable Professional Conduct (and Insulting Judges).  Even when judges themselves are not online, comments about them in cyberspace can lead to ethical violations. Much like the "catch-all" Federal Rule of Evidence 807 residual exception to hearsay, the ABA rules also capture questionable conduct that, while not fitting neatly into a specific rule, still "smells funny":

  • ABA Model Rule 8.4(d): Attorney cannot engage in professional conduct prejudicial to the administration of justice.

This rule can be used by itself, or in conjunction with pretty much any other rule for some added bite. Say, for example, that as the lawyer for Cheese, Inc., who is suing a bunch of cheese manufacturers, pizza parlors and restaurants for making and using cheese that infringes a particularly cheesy patent of yours, you have become frustrated with the judge's attitude. He is constantly overruling your objections and sustaining the other side's. Clearly, the judge is lactose intolerant and has never partaken in the deliciousness that is fine cheese. Needing an outlet, you tweet to your 343 followers that the judge is "an incompetent cheese-a-phobe whose rulings stink more than a Roquefort left to rot in the sun." Hey, the First Amendment, right? Wrong:

  • ABA Model Rule 8.2: Attorney cannot make false or reckless statements regarding the qualifications or integrity of a judge.

Attorneys in Broward County Court, Florida learned that just this type of conduct can be a violation of both ABA MPC rules. Specifically, local attorneys there frequent JAABlog, a local but private forum. One attorney, Sean Conneryway, logged onto the site and questioned the procedure of a certain judge, calling her by name, and referring to her as an "evil, unfair witch" and "seemingly mentally ill." Conway also declared her "clearly unfit for her position and knows not what it means to be a neutral arbiter." While most of this could easily be classified as hyperbole, the Florida bar found him guilty of FIVE ethics violations, including the Florida version of these two Rules. While Double-O Conway argued that he was simply exercising his First Amendment right, this argument netted him a public reprimand and $1,250 fine. See Florida Bar SC08-326 (Fla Jan 22, 2009).

By contrast, another example took place during a fee dispute following a routine employment lawsuit against UPS. UPS and its attorneys at Paul Hastings, submitted as evidence several of the plaintiff-attorney's posts on the private California Employment Lawyers' Association (CELA) listserv concerning the trial of his client, a UPS employee. These included a post in which the attorney criticized the district court judge in the trial as "defense-biased from the [MSJ] hearing forward," and another in which he stated that:

Amazingly, my colleague and I caught her [the judge] signaling to defense counsel to try to elicit objections during our examinations. Perhaps the judge did not like me or my personality, but I have never had an experience like this in 40 years of lawyering.

CELA requested that Paul Hastings be referred to the state bar ethical committee for submitting stolen evidence, since the listserv was a closed forum and the firm knew that CELA was asserting privilege. The court found it  "inappropriate" for Paul Hastings to publicly disclose the material and held that doing so could pose a "security risk" to the judge at issue. While silent on potential rule-based violations, under these facts ethical violations of Rules 8.2 and 8.4(d) could be possible for the plaintiff-attorney, and perhaps a Rule 8.4(d) violation for the law firm. 

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In sum, as noted in Parts I, II and III of this article, the potential ethical violations faced by attorneys (and judges!) as a result of improper use of social media, are many. As social media grows increasingly common and complex, the  issues will only increase.

Nor are attorneys, their clients, and judges the only ones in the legal system affected. Even jurors face sanctions over improper use of social media. For example, juror Hadley Jons was recently punished for posting a "Guilty" verdict on Facebook before the verdict was even announced in court. The posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day, and judge ordered her to write a five-page essay about the constitutional right to a fair trial.

Dr. Seuss, Cheese and Social Media, Part II: Ethical Pitfalls, Pretexting and Duties of Candor

 Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media.  These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.  

1.  False and Misleading Behavior (Pretexting):  The ABA Model Rules of Professional Conduct ("ABA MPC") for lawyers are full of prohibitions against attorneys engaging in various types of false and misleading statements.  For example:

  • ABA MPC Rule 4.1: Attorneys cannot make false, material statements to a third party.
  • ABA MPC Rule 4.2 -- Attorneys cannot communicate with a represented person.
  • ABA MPC Rule 4.3: Attorneys cannot misrepresent their role or disinterestedness to an unrepresented party, and must correct any misunderstanding as to these issues.
  • ABA MPC Rule 5.3: Attorneys are responsible for the conduct of a non-lawyer assistant and must make reasonable efforts to ensure the person's conduct is compatible with the lawyer's professional obligations.
  • ABA MPC Rule 8.4(c): Attorneys cannot engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or encouragement of such.

In today's cyberworld, every single one of these rules can be evoked when an attorney engages in pretexting, which raises ethical concerns relating to contacting opposing parties and gathering information without full disclosure or consent.

What is pretexting? The long, boring answer: obtaining personal information under false pretenses, usually by concealing one's identity or intent. The short, more interesting answer: the Hewlett-Packard (HP) scandal of 2006. HP spied on its own directors' personal phone records to determine who was leaking company information, by having private investigators call up phone companies, pretending to be the directors who were seeking their "own" records. Criminal charges were brought against the HP Chairman of the Board, Patricia Dunn, the alleged brains behind the investigation. The charges were eventually dropped "in the interests of justice," but not before Dunn was pressured to step down as Chairman.

While the HP scandal did not concern social media, it brought the growing practice of pretexting to the forefront -- a problem that has been magnified in the online context. People, after all, are easier to deceive in a virtual world.  It would be simple for Attorney Sam to create a false Facebook page in order to get our Witness to accept his friend invitation. The end result: the incriminating impeachment photo.

Did Attorney Sam act improperly? Most likely. Bar associations and courts are bearing down heavily on pretexting lawyers. While it is fine if the social media page is public, like a blog or an open Facebook page, see, e.g., NY State Bar Ass'n Comm. on Prof. Ethics, Op. 943 (Sep. 10, 2010), if the attorney must interact with the person to gain access (i.e., "friending"), the pretexting would likely violate one or more ABA rules.

"But wait," Attorney Sam might say. "I may not have told him who I was, but Witness accepts friend invitations from everyone, even people he doesn't know!" Too bad.  The pretexting still involved "dishonesty, fraud, deceit or misrepresentation." See, e.g., Philadelphia Bar Ass'n Prof. Guidance Comm. Op. 2009-02.  Whether Witness might still have accepted Attorney Sam's invitation if he knew of his identity, is irrelevant. Id.  Similarly, at least in Philadelphia, even where the attorney is honest about who he is when making a friend request, an attorney must make full disclosure of his motive, otherwise the request is deceitful since the attorney is concealing a highly material fact -- that he is trying to obtain impeaching testimony. Id. Luckily for Attorney Sam, New York has come out a different way. There, if an attorney uses his real name and profile without disclosing the reason, no ethical violation may be found if the person being friended is an unrepresented party. See NYC Comm. On Prof. and Jud. Ethics 2010-2 (Sep. 2010).

"Wait!" Attorney Sam says again, eager to remove all doubt. "Maybe it wasn't me who made the friend request. It was my private investigator, who also doubles as my paralegal!" But if the paralegal or investigator engages in this conduct at the attorney's request, and possibly even without his express knowledge, the attorney is still on the hook -- for example, under Rules 5.3 and 8.4(c).  There are, however, limited exceptions. Remember, as set forth in Part I, that this case by Cheese, Inc. is a patent infringement case, and might have overtones of trade secret issues. Some bar association ethics committees allow for pretexting when investigating violations of civil or intellectual property rights.  New York is one example.  See, e.g., NY Cty Lawyers Ass'n Comm. on Prof. Ethics No. 737. Similarly, in Alabama, "[d]uring pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public." Alabama State Bar Office of the Gen. Counsel Op. 2007-05.  This ruling has been found applicable to social media.

In short, friending witnesses or anyone else involved in the case is risky. The law is still not quite settled. Until it is, better safe than sorry.

2.  Duty of Candor.  In addition to a duty not to make false statements to third parties, a lawyer also has a duty of candor to the court:

  • ABA MPC Rule 3.3(a): A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . .

While social media does not necessarily cause an attorney to violate this duty, it does make it easier to be caught with one hand in the cheese cabinet. A prime example is an attorney who asked Judge Susan Criss of Galveston, Texas state court, for a continuance because of the death of her father. Judge Criss peeked at the lawyer's public Facebook page during the week of the alleged funeral, and found that she had posted a string of status updates detailing her week of drinking and partying.

Attorneys might rail against the unfairness of judicial intrusions upon their Facebook pages. But at least one court has held that attorneys likely have no "reasonable expectation of privacy" on social media despite whatever privacy settings they employ, since Facebook and MySpace do not guarantee "complete privacy." Romano v. Steelcase, 907 N.Y.S.2d 650, 655 (2010). This was proven again just this past week on July 20, 2011, when police found an escaped drug offender lunching with his Oklahoma lawyer a day after he escaped from jail -- in part because they discovered that the lawyer had posted a Facebook photo of the two of them together.

In short, lawyers who use social media -- whether personally or for investigative purposes -- should therefore be careful:  sometimes it is not possible to both have your green eggs and ham, and eat them too. 

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Coming soon, the final installment of our "Dr. Seuss, Cheese, and Social Media" trilogy, on what happens when attorneys discuss or contact judges on social media. 

Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients

Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client.  Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

1.  Breaches of Confidentiality. ABA MPC 1.6(a) has two prongs:

  • Lawyers cannot reveal information "relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted" under several narrow exceptions.
  • Lawyers must competently safeguard their client's information against unauthorized or inadvertent disclosure by the lawyer.

Let’s pretend you are the CEO of Cheese, Inc. and your company was just yesterday granted a patent on a method of creating cheese wheels that are fat-free and even tastier than "the real thing." You have hired a young, up-and-coming patent litigation partner at Dewey, Cheatham & Howe LLC to help you amass a case against a number of pizza companies, cheese manufacturers, and restaurants who make or use cheese wheels that infringe your patent. You’ve friended your DC&H attorney on Facebook and LinkedIn because . . . well, because the more connections, the better, right? To your horror, you see your attorney’s status update gleefully stating that he is "About to take on the cheese industry -- stay tuned!"

If that’s not enough, one of your attorney’s 700 “friends” on Facebook happens to be married to in-house counsel for a major cheese manufacturer. That savvy attorney takes a look at your friendly DC&H partner's page to see where he's "checked in" over the last week or so, and sees that he went to dinner a few blocks away from Cheese, Inc. He also sees that you, the CEO of Cheese, Inc., are on this attorney's "friend" list. He puts two and two together. The next day, his company files a declaratory judgment lawsuit against Cheese, Inc., way out in the inconvenient Western District of Kalamazoo where he is based, asking for a declaration of noninfringement. You have now lost the home court advantage, among other things.

There are many other ways an attorney can breach confidentiality on social media, even if it doesn’t result in a situation as extreme as this:

  • Even innocuous status updates like, "I'm working on a motion to dismiss in ABC case, arguing XYZ" are risky, since someone might be able to tell from context what case it is.
  • If an attorney posts a status update or tweet from a smartphone, i.e., “just met a brand new client with a lucrative lawsuit”, geo-tagging can show where he was and allows one to guess the client's identity from the location.
  • An attorney may inadvertently reveal confidential information, such as a confidential relationship, by allowing a site like LinkedIn to import Outlook contacts, or allowing others to view his "friend" list, which could include clients.
  • Linking to other websites on Facebook (such as a client’s) could disclose a confidential relationship.
  • Some sites require granting the site developer access to all information placed on it, which could destroy claims of privilege/confidentiality regarding social networking communications.

As one real life example, in Illinois Supreme Court M.R. 23974 (Ill. May 18, 2010), an Illinois attorney received a 60-day suspension and was fired from his public defender job of 19 years, for making veiled references on a Facebook page to his client's identification and confidential case details. His posts included: "This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he's no snitch." While vague, the post was still enough to reveal client confidences. However, the attorney admittedly referred to the judge in the case as "Judge Clueless" and "a . . . hole,” which certainly did not help his situation.

2.   Conflicts of Interest and Unintended Relationships. Nor is breach of confidentiality the only potential difficulty. ABA MPC 1.7 precludes a lawyer from representing a client where such representation is "materially limited" by a "personal interest of the lawyer." And ABA MPC 1.8 states that even where no attorney-client relationship is created, “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation" or "represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter" if it could be harmful to that prospective client.

What does this mean for social media? As a client, your attorney could violate either rule as to your interests simply through routine internet communiqués. Let’s say you, our CEO of Cheese, Inc., have that DC&H attorney with a Facebook page that you are privy to. His News Feed contains a post from a friend who is a taste tester for Food & Wine magazine, expressing fear that she may be embroiled in a lawsuit involving a company she consults with. You see that your attorney has provided a few tips on staying out of trouble.  You also recognize the friend as a well-known cheese expert who works closely with one of the competitors you are about to sue!  You Google your attorney’s name and find that soon after this communication, your attorney wrote a blog post about how the food industry is becoming increasingly litigious and what can be done by "the little guy" to protect oneself against such lawsuits by the Big Cheese.

Unlike other methods of communication, social networking often consists of casual interactions that cannot be distinguished from more formal relationships. Simply by helping out a friend or expressing a public opinion on a public issue, your attorney may very well have created at least one conflict of interest implicating ABA MPC 1.7 and 1.8. And how?

  • Providing casual advice can create an attorney-client relationship or even "prospective" relationship that does not rise to that level, which conflicts with an existing client. Attorneys are constantly faced with friends who post about their legal troubles, so there is a temptation to give quick advice without thinking about it first -- and certainly without running conflict checks.
  • Soliciting confidential information on social media can easily create such a relationship as well. Acquiring confidential information from the prospective client -- even via a casual "tell me more and I'll give you a little advice off-the-record" -- could then lead to a conflict of interest with a current client.
  • Expressing definitive legal opinions on social media may conflict an attorney out of a big case with a current client. In fact, the entire firm could be conflicted out due to one attorney's comments.

However, note that a legal blog does not pose these ethical dilemmas if there is no communication of individual advice. As stated in State Bar of Ariz., Formal Ethics Op. 97-04 (1997):

Lawyers should not answer specific legal questions from lay people through the Internet unless the question presented is of a general nature and the advice given is not fact specific.

Thus, if your attorney possesses a “Dear Abby, J.D.” type of website or blog that offers specific advice on problems within your industry, it might be a good idea to think twice before signing the engagement letter.

3.  LinkedIn and Client Contacts. ABA MPC 7.4 states that an attorney cannot claim a specialty unless it is in admiralty or patent law, or unless the lawyer has obtained a certification. Similarly, ABA MPC 7.2(b) states that an attorney cannot give something in value in exchange for a recommendation from a client. But social media, particularly LinkedIn, makes it easy for attorneys, both in-house and outside counsel, to fall into this trap.

For example, your DC&H attorneys have successfully resolved Cheese, Inc.'s patent infringement lawsuit, obtaining an infringement finding and leading to damages in the hundreds of millions. You, as CEO of Cheese, Inc., are thrilled! You've been playing with LinkedIn, and tell your contacts at DC&H that you'll recommend them if they recommend you. You both write and post blurbs about each other. This complements all of your LinkedIn profiles, which now lists all of the attorneys involved as specialists in patent litigation. How does this and other usage of LinkedIn violate the rules?

  • The "Recommendations" feature allows your client to recommend you, and vice versa. Clients and attorneys should not quid-pro-quo recommend each other on LinkedIn, so as not to violate ABC MPC 7.2(b).
  • The "Recommendations" feature allows clients to say whatever they want. Ethical standards prevent some types of statements, such as comparisons to other attorney services absent objective data -- i.e., "Best lawyer in town." Pre-screen the recommendations before they are posted.
  • LinkedIn allows listing "specialties" on the user profile, as well as areas of practice. The smart thing to do is leave these vague or blank so as not to violate ABA MPC 7.4.
  • The "Answers" feature allows attorneys to respond to questions that are posted generally. If voters constantly give the attorney's response a "best response" vote, LinkedIn designates the attorney as an "Expert," which may violate this rule.

The overall lesson? As a potential client, when shopping for an attorney or law firm, conduct a Google search and see what kind of social media footprint your prospective counsel has left. And on the flip side, monitor your own  footprint closely. You and your attorneys don't need to stay away from social media, merely be careful not to bare your "soles" too heavily. 

Wear shoes.

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Coming Soon, Part Two on the Ethical Pitfalls of Social Media: Even more ethical rules implicated by social media, and examples of attorneys -- and judges -- who have stepped into the muddy situations they create.