BLOGGING & SOCIAL NETWORKING FOR LAWYERS: ETHICAL PITFALLS

As social networking websites like Twitter, Facebook, MySpace and LinkedIn become increasingly more popular among lawyers, judges, support staff and clients, lawyers have to be mindful about some ethical concerns that may not be obvious. Some lawyers may say that social networking does not present any novel issues for lawyers to worry about. Lawyers cannot afford to be so cavalier. Experienced lawyers and seasoned judges have suffered professional discipline for the improper use of social networking tools. The informality and speed with which communications are made using social network tools like Twitter and Facebook may contribute to errors and ethical transgressions. Also, lawyers need to appreciate that communications over social networks are public, easily searched and permanently archived.




Confidentiality



Rule 1.6 of the Virginia Rules of Professional Conduct requires a lawyer to protect and not disclose a client’s confidences and secrets, unless the client consents to the disclosure. Confidences are communications between lawyer and client that are protected under the common law attorney-client privilege. Secrets embrace all other information gained in the course of the lawyer-client relationship that the client wants kept confidential or if disclosed would be detrimental or embarrassing to the client. Unlike Virginia, most states did not keep the “confidences and secrets” formulation when they adopted a rule modeled after ABA Model Rule 1.6. ABA Model Rule 1.6 requires that all information relating to the representation of the client be kept confidential. It is important for Virginia lawyers who are admitted in other jurisdictions to know that other jurisdiction’s rule on confidentiality. Under ABA Model Rule 1.6, even the client’s identity and the fact of representation is confidential, whereas under Virginia’s Rule 1.6, that generally is not the case.



A lawyer who discusses his or her cases on Twitter, Facebook, or a blog runs the risk of violating Rule 1.6, absent client consent. A lawyer could easily breach confidentiality on Twitter simply by tweeting to followers what they are doing at that particular time. A lawyer could try to avoid disclosing specific client information by keeping the message very general and vague but this would not be interesting to read. A lawyer may consider having the client agree up front to permitting the lawyer post information about the client’s matter on a social networking site. However, the lawyer must ensure that any disclosure will not hurt the client’s legal position or embarrass the client. Since there may be quite a lot of information that is unknown at the outset of an engagement, an advanced consent may not be effective because it was not informed. The client may be quite angry with the lawyer for posting information learned after the consent was given. In addition, there is a risk that the posted information may be read by the client’s adversary, opposing counsel, or other third parties. While it may be improper under certain circumstances for lawyers or their agents to go mining for an opposing party’s personal information on a social networking site, some lawyers don’t think, don’t know, or don’t care that obtaining and using your client’s information may be unethical.



The Illinois Attorney Registration and Disciplinary Commission has commenced disciplinary action against an experienced assistant public defender who discussed her cases on her blog. Here is what she posted on her blog:



#127409 (the client's jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he's no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.



In another post, the assistant public defender stated:



“Dennis,” the diabetic whose case I mentioned in Wednesday's post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn't being managed well.



In yet another post, the assistant public defender vividly described her client’s perjury in a criminal case. In addition to the blog entries described above, the lawyer referred to a judge as being “a total asshole,” and in another she referred to a judge as “Judge Clueless.” The Illinois Board has recommended her disbarment.



Criticizing a judge in a blog got lawyer Sean Conway in trouble. In a conditional plea, Conway agreed to a reprimand for calling a judge an “evil, unfair witch” in a blog post. He claimed in a brief submitted to the Florida Supreme Court that his remarks were protected by the First Amendment, but the court disagreed and affirmed the disciplinary agreement.



On Facebook, a user's profile, photographs, and updates are sometimes available to the public at large or more generally to any other member who is authorized by the first user. Facebook’s platform allows users to add such “friends” and to send them messages, as well as leave postings on “friends’” profile pages through what are called “comments” and “wall posts.” Fortunately, privacy and security settings on Facebook allow the user to restrict or limit access the user’s profile to only members, the user’s “friends” or even a select few “friends.” If the user is not careful, information can easily fall into the wrong hands. For example, in People v. Liceaga, a Michigan murder trial, the prosecutor sought to admit photographs found on the defendant's MySpace page as evidence of intent and planning. Specifically, the defendant's profile Web page contained photographs of himself and the gun allegedly used to shoot the victim, and in which he was displaying a gang sign.



In In the matter of K.W., a North Carolina court admitted into evidence an alleged child abuse victim’s MySpace page as impeachment evidence. Specifically, the court held that the victim’s posting of suggestive photographs along with provocative language could be used to impeach inconsistent statements made to the police about her sexual history.



Courts have also permitted information gathered on a person’s social networking site to be used as evidence at the sentencing stage of a criminal proceeding. In United States v. Villanueva, the court found that post-conviction images on the defendant's MySpace page of the defendant holding an AK-47 with a loaded clip taken after the defendant had been convicted of a violent felony could be used as evidence to enhance sentencing.



Trial Publicity



Virginia Rule 3.6 prohibits a prosecutor or a defense lawyer from making public statements about pending criminal cases in which they are involved if the statement will have a substantial likelihood of interfering with the fairness of a trial by jury. Other states’ versions of Rule 3.6 impose the ban in civil cases as well. As jurors use the Internet when they go home for the evening, there is a risk of a mistrial if the lawyers participating in the case are blogging or tweeting about it.



A 40-year-old California attorney has had his law license suspended for 45 days over a trial blog he wrote while serving as a juror. Because of a blog post by Frank Russell Wilson, an appeals court reversed and remanded the felony burglary case, reports the California Bar Journal. As a juror, Wilson was warned by the judge not to discuss the case, orally or in writing. Wilson evidently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial,” he writes, before posting unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.



Using Pretext to Obtain a Person’s Information on a Social Networking Web Site



As social-networking websites such as Myspace, Facebook, and Twitter continue to become more popular, criminal and civil attorneys across the nation are beginning to find these websites useful for gathering evidence and personal information relevant to their cases. However, lawyers must be mindful of Virginia Rule 8.4(c) which prohibits deception and misrepresentation and Rule 8.4(a) which states that a lawyer cannot use the agency of another to violate the ethics rules. A recent ethics opinion by the Philadelphia Bar Association holds that a lawyer violates Rule 8.4 by employing a third party to go online and gain access to a person’s information on Facebook by asking to be their “friend.”





Misrepresentation



A lawyer requested a continuance claiming a death in the family, but the Galveston, Texas judge checked her Facebook page and discovered news of a week of drinking and partying. The judge informed the lawyer’s senior partner of her misrepresentation. The judge told the ABA Journal that the lawyer “defriended” her.



Ethical Lapses by Judges

A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case on Facebook, posting and reading messages about the litigation, and accessing the website of the opposing party. See In the Matter of B. Carlton Terry, Jr., North Carolina Judicial Stds, Comm’n, No. 08-234 (April 1, 2009). Both the Virginia Rules of Professional Conduct and the Canons of Judicial Conduct prohibit ex parte communications between lawyers and judges about pending matters, subject to some limited exceptions. Virginia Rules of Professional Conduct, Rule 3.5 (e); Canons of Judicial Conduct, Canon 3B(7).

The Florida Supreme Court’s Judicial Ethics Advisory Committee has issued an opinion holding that it is judicial misconduct for a judge to add as “friends” on Facebook lawyers who may appear before that judge. The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. See also Va. CJC, Canon 2B.

Lawyer Advertising Rules

Lawyers should review Virginia Rules 7.1 and 7.2 to make sure all statement or claims made via a website, a blog, Twitter, Facebook, or LinkedIn are in compliance with the advertising rules. Rule 7.1 prohibits a lawyer in his or her public communications from making false or misleading statements about the lawyer or the lawyer’s services. Rule 7.2 imposes additional requirements on “lawyer advertising,” including identifying by name and office address the lawyer responsible for the advertisement. Rule 7.2(e). Consider also reading Virginia LEO 1750 (Advertising, Compendium Opinion). Lawyers must ensure the advertising rules are followed if using Internet media to promote their services especially if using celebrity endorsements, client testimonials, specific case results, specialization claims, or comparative statements. Moreover, advertising with electronic media is subject to Rule 7.2(b) which requires a record be maintained of the advertisement for one year from its last appearance date.



For example, LinkedIn has a section on “specialties.” In many jurisdictions, lawyers are either forbidden from holding themselves out as specialists or must meet certain requirements to do so. In some states this means the lawyer must be certified as a specialist under that state’s specialization certification program. Virginia does not have such a program. However, Virginia does not prohibit a lawyer from holding out generally as a specialist or expert in an area or field so long as the claim can be factually substantiated. Virginia’s Rule 7.4 does prohibit a lawyer from saying that he or she is certified as a specialist, unless the communication also has a required disclaimer that the state of Virginia does not have a procedure for approving or certifying specializations.



A lawyer who “tweets” about obtaining a huge verdict in a case will likely violate Rule 7.2’s prohibition against advertising specific case results because the 140 character limitation on tweets makes it impossible to include the required disclaimer. Rule 7.2(a)(3). Rule 7.2(e)’s requirement of responsible attorney identification may also preclude the use of Twitter as an advertising media.



Client recommendations or endorsements must be scrutinized by the lawyer for compliance with the advertising rules. South Carolina Ethics Advisory Opinion 09-10 states that a lawyer is responsible for any recommendations, endorsements or ratings ascribed to that lawyer on a third party website. If the lawyer cannot monitor and remove or edit non-compliant statements, the lawyer must cease participation on that website. Some legal ethics experts believe a lawyer should not be held responsible for an unsolicited endorsement or recommendation.



LinkedIn has a section on recommendations in which the member can ask other members for a recommendation. Some states do not allow client testimonials, so Virginia lawyers admitted and practicing in other states need to be aware of that state’s rule. Even if the state, like Virginia, allows client testimonials, endorsements, or recommendations, the testimonials must be monitored, revised, or removed so as to comply with Rules 7.1 and 7.2. For example, the lawyer cannot permit to remain on his LinkedIn page a client recommendation that says the lawyer is the “best personal injury lawyer in town,” because it is a comparative statement that cannot be factually substantiated.



Is There a Form of “Solicitation” that is Prohibited or Restricted?



Virginia’s Rule 7.3 regulates direct communication with prospective clients and states “[i]n person communication means face-to-face communication and telephonic communication.” Thus, invitations from a lawyer to a prospective client into the lawyer’s LinkedIn or Facebook page would likely not fall within the rule. However, lawyer solicitation rules vary from state to state, so a Virginia lawyer licensed in other jurisdictions should review the ethics rules of that particular state to determine whether these forms of communication are subject to regulation as a form of solicitation.



Creating Unintended Lawyer-Client Relationships



The lawyer must consider whether informational advice on a blog or website creates the impression of giving legal advice that can be relied on by a visitor. Clear disclaimers can be helpful in resolving this problem. The question to ask is, “Does the online resource do anything that would create client expectations?”



Legal information of general application about a particular subject or issue is not “legal advice” and should not create any lawyer-client issues for the blogging or posting lawyer. Appropriate disclaimers will assure this conclusion. However, if a lawyer by online forms, e-mail, chat room, social networking site, etc. elicits specific information about a person’s particular legal problem and provides advice to that person, there is a risk that a lawyer-client relationship will have formed. Virginia LEO 1842 (2008) addresses this issue somewhat in connection with visitors on a law firm’s web page. The Committee believes the lawyer does not owe a duty of confidentiality to a person who unilaterally transmits unsolicited confidential information via e-mail to the firm using the lawyer’s e-mail address posted on the firm’s website. The person is using mere contact information provided by the law firm on its website and does not, in the Committee’s view, have a reasonable expectation that the information contained in the e-mail will be kept confidential. On the other hand, if the law firm’s website invites the visitor to submit information via e-mail to the law firm for evaluation of their claim, there will be a limited lawyer-client relationship for purposes of Rules 1.6, 1.7 and 1.9. The law firm may be disqualified, under these circumstances, if they are also representing a client adverse to the website visitor. The website disclaimer might state, for example, that no attorney-client relationship is being formed when a prospective client submits information, and that the firm has no duty to maintain as confidential any information submitted. The disclaimer should be clearly worded so as to overcome a reasonable belief on the part of the prospective client that the information will be maintained as confidential. In addition, the Committee recommends the use of a “click-through” (or, “click-wrap”) disclaimer, which requires the prospective client to assent to the terms of the disclaimer before being permitted to submit the information.



Law Firm Policies and Supervision of Employees



Lawyers in law firms have an ethical duty to supervise subordinate lawyers and non-lawyer staff to ensure that their conduct complies with applicable rules of conduct, including the ethical duty of confidentiality. See Rules 5.1 and 5.3. To this end, law firms need to have policies in place regarding employees’ use of social networking websites during and after normal business hours.