Ethics Tip of the Month - April 2013

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Is That Egg on your Facebook?

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Social media is everywhere these days, and legal ethics committees and disciplinary agencies have begun to analyze the legal ethics implications of the manner in which lawyers use it not only to promote their day to day practice, but on their personal social media sites as well.

Some of these opinions discuss a lawyer’s use of deception to gain access to an adversary’s social media website. (For a discussion of some of these opinions, see the November 2011 Eye on Ethics column entitled, F acebook: State Bar Opinions Address Information Gathering .

Others address advertising concerns with regard to information lawyers might post on their sites. See, e.g. California ethics opinion 2012-186 (2012).

Two recent episodes involve lawyers’ posting of client information on social media sites. In Florida, a public defender was present when her client’s family brought the client clothes to wear at trial. The corrections officers checked though the garments, holding up and examining each article of clothing. When he held up her client’s leopard print briefs, the lawyer snapped a cell phone picture and posted it on her personal Facebook page with a remark to the effect that the client’s family felt that this article of clothing was “proper attire for trial”. The lawyer also made a comment that questioned her client’s innocence. Even though this was posted to the lawyer’s personal social media site, someone with access to the site notified the judge in the case, which was a murder trial. The lawyer’s supervisor stated that the lawyer’s conduct in the case showed a clear disregard of the lawyer’s duty of loyalty to the client. The outcome? Murder case - mistrial; Lawyer - unemployed. For further details, See, Lawyer’s Facebook photo causes mistrial in Miami-Dade murder case , September 9, 2012 Miami Herald Tribune.

In a different factual setting, a Georgia lawyer became upset when clients posted criticism and negative comments on websites that gather consumer reviews on service professionals. This lawyer, who was also having some stressful personal issues, fought back on her own social media pages, giving her side of the story and in the process revealing the clients’ personal and confidential information. The Georgia Supreme Court stating that the preservation of client confidences “is a fundamental principle in the client-lawyer relationship” rejected the lawyer’s request for a voluntary reprimand. It also found that there was insufficient factual information about what the lawyer had disclosed and what if any resultant harm there was to the client and remanded the matter for further proceedings. See, In The Matter Of Margrett A. Skinner, Supreme Court of Georgia S13Y0105 March 18, 2013.

Lawyers must be careful to avoid posting client information on their social media websites even when they remove all identifying information, as sometimes the facts involving a particular client can be such that someone reading the post could put two and two together and discern who the lawyer is talking about. In the context of lawyers consulting about client matters with other lawyers who are not in the same firm, ABA Formal Opinion 98-411 Ethical Issues in Lawyer to Lawyer Consultation (1998) warned about this possibility, stating:

The consulting lawyer should not assume, however, that the anonymous or hypothetical consultation eliminates all risk of disclosure of client information. If the hypothetical facts discussed allow the consulted lawyer subsequently to match those facts to a specific individual or entity, the information is not already generally known, and disclosure may prejudice or embarrass the client, the consulting lawyer’s discussion of the facts may have violated his duty of confidentiality under Rule 1.6. – ABA Formal Opinion 98-411.

So when posting information on social media websites always bear in mind your obligation to protect client confidences. No one wants egg on their Facebook!

© 2013 by the American Bar Association

 

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