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.
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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.