Social networking can be a quick and low-cost way for lawyers and judges to both market themselves and stay in contact with friends and clients. Unlike many lawyers who embraced technology, I fought turning my privacy and free time over to the net, preferring my clients to call and meet me in person. It was a valiant fight, but one doomed to be lost, if only because my clients demanded I capitulate. However, you will not see me actively on Facebook or LinkedIn. Why? Because there are a variety of ethical mine fields in Web 2.0 for lawyers.
Ensuring confidentiality of your communications is not just wise, it is also an ethical issue.
Ask yourself if you are okay with everyone on the planet forever being able to see your posted photos and comments. You are? Okay, then ask yourself this – do you always think twice before you push the send button and do you always keep your posts emotion-free? You do? Okay, then how about this: do you ever send things like “That judge is intellectually dishonest, and she was dead wrong today!” Or to your buddy: “Wish me luck today – it’s my first trial.” You do? Then read on.
Ensuring confidentiality of your communications is not just wise, it is also an ethical issue. The State Bar of California Committee on Professional Responsibility and Conduct has very recently addressed this issue in Formal Opinion No. 2010-179 . California attorneys have an express duty under B&P Code section 6068 “[to] maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her clients.” This duty arises from the relationship of trust between an attorney and a client and, absent the informed consent of the client to reveal such information, there are very few exceptions. The safeguarding of this information is governed by the duty of competence, and that means ensuring that you have checked that the particular technology you are using affords a proper level of security. Most attorneys do not possess much technological savvy, and this Opinion compels lawyers to consult with someone with technological knowledge if you are unsure of any deficiencies in your firewalls. When the attorney-client privilege is at issue the failure to use sufficient precautions can be used in determining waiver.
To Friend or Not to Friend – The Perils of Facebook
Another ethical issue arises from friending potential clients. Lawyers now actively use social media to share information about their professional accomplishments and post their case rosters. Those postings prompt prospective clients or “friends” to ask for legal advice. Evidence Code section 950 defines “lawyer” for the purpose of the attorney-client privilege as either a person authorized to practice law , or a person “reasonably believed” by the putative client to be so authorized. The word “client” is similarly broad: “a person, who, directly or through an authorized representative consults a lawyer for the purpose of retaining the lawyer or securing legal services or advice from him in his professional capacity.” The truth of the matter is, it is pretty easy to unwittingly establish an imputed attorney-client relationship.
In addition, speaking with a client about his or her case on a social media site may arguably violate confidentiality, depending on the post. The Rules have no exception for social media. The American Bar Association has recognized the lack of guidance from state ethical boards on this and other social media issues and has launched the Ethics 20/20 Commission which is tasked with focusing on ethics challenges arising out of advances in technology.
Another problem arises when attorneys transmit unilateral messages to judges about the merits of pending cases. Believe it or not, research reveals that it happens frequently. I think that is because lawyers and judges who are real friends (vs. Facebook “friends”) who have become comfortable with social networking fail to see the impropriety of an off-the-cuff remark about a pending case. Rule of Professional Conduct 5-300 specifically forbids contacting a judicial officer about the merits of pending matters except in open court or with the consent of or in the presence of all counsel.
Problems arising out of informality are not limited to Facebook. They also plague other forms of social media such as blogging and micro-blogging on Twitter.
The Perils of Twitter
Lawyers, like many other people today, sometimes feel the need to give a stream of consciousness play by play of what they are doing. Unfortunately, they don’t always think before they tweet and they have been known to tweet about how their trial is going, even posting things like “Heard next defense witness has expunged theft conviction. LOL! Can’t wait 2 m-peach.” Tweets can be particularly troubling, as John Quinn of Quinn Emanuel found out after he bragged on Twitter about the firm’s victory in a fee dispute with the Winklevoss twins (the twins who sued Facebook, Inc.) “Winklevoss twins lose again: QE payday cometh” when the details of the fee dispute were under seal.
It isn’t just lapses of professional judgment that can get you into trouble. Personal tweets can be problematic as well. One lawyer tweeted about her vibrator. Should a lawyer ever tweet about vibrators, or anything else that is personal? This question is starting to come up more and more in firms. Most firms have some kind of social media policy in place, but the Rules of Professional Conduct don’t regulate personal tweeting as long as it doesn’t violate 5-120 or the confidentiality rule, because personal tweets don’t discuss firm clients or business.
The Perils of Blogging
It isn’t always clear, though, what is a personal and what is professional and there can be a large grey area. Earlier this year, a partner at Akin Gump wrote a post on a conservative blog that he had he founded. The blog entry criticized a Yaqui Indian tribal prayer. His post drew the ire of an Indian law and policy partner in the firm who, along with the firm Chair, expressed their distaste for the commentary on the firm’s website. He kept his job, but had to quit the blog.
Rule of Professional Conduct 5-120 regulates extra-judicial statements if the lawyer knows they have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. One lawyer was suspended from practice for blogging about a case in which he was a juror. Unfortunately, the posting was unflattering to both the defendant and the judge. The blogging lawyer’s defense, which did not carry the day, was that he did not think blogging fell under the Rule. He was wrong. It does.
Think Before You Tweet
So what is a lawyer to do? My advice to you would be to carefully consider whether you really want to throw out all your “old school” ways. Always remember that whatever you do and whatever you say reflects upon you personally and professionally and that you are always bound by the Rules of Professional Conduct.
Social media is here to stay but human to human contact gives a lawyer, whether through facial expressions of the listener or tone of voice, far more information to consider before saying something, well…dumb.
Carol M. Langford is a lawyer specializing in ethics and State Bar defense in Walnut Creek, California. She is an adjunct professor at U.C. Berkeley Boalt Hall School of Law in professional Responsibility.
Want to read more about legal tweeting? Here’s a great article from the AM LAW Daily: The Tweet That Roared: Lawyers and Law Firms Navigate Social Media Land Mines