The Social Media Thicket: Surviving and Thriving in the Tangled Thorny Issues

Volume 26 No. 4

by

Michael H. Rubin practices with the firm of McGlinchey Stafford, PLLC, in Baton Rouge, Louisiana. Kathy Gutierrez is the director of Marketing Operations for the law firm of Haynes and Boone, LLP, in Dallas, Texas.

Lawyers and law firms are increasingly using social media today to build their reputations, to inform their clients, and to reach potential clients; but the use of social media can create ethical problems for attorneys.

When more than half of all in-house counsel report using social media for news and information, when 81-year old Rupert Murdoch uses Twitter, when the fastest growing cohort on Facebook includes those over the age of 50, when the Association of Corporate Counsel has a user group on Linked- In, and when bloggers regularly break important stories and appear on television and radio news broadcasts, you can be sure that social media permeates society. No lawyer can afford to ignore social media.

Lawyers and law firms are increasingly using social media today to build their reputations, to inform existing clients, and to reach potential clients.

Can the use of social media create ethical problems for attorneys? Can lawyers inadvertently back themselves into ethical corners? Let’s consider four examples, all of which are based on real situations. The purpose of these examples is not to scare anyone into abandoning social media; rather, the purpose is to make us more aware of the issues involved and to think through why and how we use social media. Further, this article does not answer questions but rather poses issues to be considered by those who use (or who are thinking about using) social media.

The Case of the Tech-Savvy Lawyer

Lucy Lawyer has a Facebook page linked to her Twitter account and her blog. She updates items daily. She posts her thoughts on recent cases and legal issues. She even has a section of each post entitled “Practical Tips,” where she gives specific advice related to the issues about which she is posting.

Lucy recently posted on foreclosure issues, the problems lenders have encountered in foreclosure cases, and how borrowers have stopped foreclosure proceedings. Included in her “Practical Tips” section is this statement:

Always check the public records. If the entity that is suing you is not listed in the public records as the owner of your note, you can have a claim against them on numerous theories, including fraud on the court, misrepresentation, and, perhaps, even RICO! Click here for a sample complaint that some have used to sue lenders.

Does Lucy’s post constitute the “practice of law”?

The ABA Model Rules of Professional Conduct (Model Rules) do not define the practice of law. Because lawyers must be licensed in each state in which they practice, one must look to each state’s statutes and court rules to determine what constitutes the practice of law.

Although many cases deal with unlawful practice of law issues from the standpoint of nonlawyers attempting to represent others in court, very few cases address transactional law issues. Nonetheless, it is instructive to look at a sampling of cases and ethics opinions concerning transactional law.

For example, Rhode Island has held that a nonlawyer who advertised on the Internet as a “low cost paralegal” for document preparation had engaged in the unlawful practice of law. In re Low Cost Paralegal Serv., 19 A.3d 1229 (R.I. 2011). In Massachusetts, certain matters involving real estate closings and transactional work constitute the practice of law, Real Estate Bar Ass’n for Mass., Inc. v. Nat’l Real Estate Info. Serv., 946 N.E.2d 665 (Mass. 2011), a rule broadly accepted by many other states, such as Arkansas, Ohio, Delaware, and South Carolina.

Lucy’s post about the issue itself may not trigger “unlawful practice” under these cases, because she is not engaged in a closing and because individuals have a right to represent themselves pro se in legal proceedings.

On the other hand, Lucy’s link to a form pleading may be seen as “ghostwriting” for potential pro se litigants that may trigger other ethical considerations. Courts are split on this issue; some courts have indicated that “ghostwriting” pleadings may be sanctionable while others hold that it is permissible. Compare Couch v. Jabe, 2010 WL 1416730 (W.D. Va. Apr. 8, 2010), with In re Liu, 664 F.3d 367 (2d Cir. 2011). Ethics opinions from state bars are split, with some banning the practice, some limiting the practice, and others (including the ABA, in a published ethics opinion, ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-446) agreeing it is permissible. The issue of “ghostwriting” is far from settled nationwide.

What about forms that do not constitute legal pleadings? At least one Florida court has held that selling legal forms is acceptable and does not constitute the unlawful practice of law, although the case pre-dated the social media phenomena. See Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1194 (Fla. 1978). Other courts have distinguished between merely supplying a form and helping someone fill out a form (even if the assistance is electronic and on-line)—the latter (in some states) may constitute the unlawful practice of law. See, e.g., Janson v. LegalZoom.com, Inc., 802 F. Supp. 2d 1053 (W.D. Mo. 2011) (subsequently settled).

The more details Lucy includes in her posts, and the more practical advice and examples of how to phrase legal documents that she gives to her readers, the closer to the ethical line she may tread, depending on the rules of the state where she is licensed to practice.

The Case of the Too-Fast-to-Respond Lawyer

Arnie Attorney is a prolific user of Facebook, LinkedIn, Twitter, and a variety of other social media sites, like PartnerUp, Ryze, Networking for Professionals, Jase, and Ziggs.

Arnie responds rapidly to any queries or comments and prides himself on his fast turnaround and 24/7/365 availability. He wants to build his brand as an attorney to as many people as possible.

Arnie gets the following query on one of the sites he maintains:

My house is in foreclosure. A guy I know promised that he could stop the foreclosure for a $1,000 fee. I paid the fee and the foreclosure is continuing. Any ideas on what I can do now?
Concerned Homeowner

Arnie quickly responds with information about the Federal Trade Commission rule on loan modifications and the liability of those who do not comply with the rules.

Has Arnie formed an attorney-client relationship with Concerned Homeowner? The general rule is that the attorney-client relationship is determined by what the client reasonably believed, not what the lawyer intended.

Can Arnie prevent an inadvertent attorney-client relationship if he puts a disclaimer in every posting? Model Rule 1.2 states: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Can Arnie even craft an appropriate disclaimer? If he does, does it undermine his marketing efforts? Does it make his posting less likely to be read? How can he ascertain that the client’s consent was “informed”? Can Arnie really make an effective disclaimer in a 140-character Twitter message?

Moreover, if Arnie has created an attorney-client relationship, he now has five additional problems.

First, his “public” posting of advice to Concerned Homeowner may constitute a breach of Arnie’s duty of confidentiality to the client, Concerned Homeowner, under Model Rule 1.6. Once an attorney-client relationship has been formed, the duty of confidentiality attaches.

Second, Arnie’s post may have violated rules on contacts with prospective clients. Model Rule 7.3 prohibits “real-time electronic contact” to “solicit professional employment” from someone with whom the lawyer does not previously have a “close personal or prior professional relationship.”

Third, Arnie’s response to Concerned Homeowner may have triggered a conflict of interest. Without knowing exactly who the Concerned Homeowner is, who the lender is, or which other persons might have an interest in the property, Arnie cannot clear conflicts and thus may have violated Model Rules 1.7 and 1.8.

Fourth, Arnie’s quick response may constitute the unlawful practice of law in the state where the Concerned Homeowner resides if that is a state where Arnie is not licensed to practice. If Arnie quickly responds to Concerned Homeowner’s query without obtaining more information, how can Arnie know where Concerned Homeowner is domiciled or where the property is located?

Fifth, if Arnie is held to have created an attorney-client relationship but has given bad advice, will he be covered by his malpractice insurance?

The Case of the Clever Firm Name

Billie “BullDog” Barrister maintains a web site for his firm, Barrister, Barrister, and Solicitor. The URL for the web site is “bulldoglawyer.com” and on the front page of the web site is this statement:

You need a fighter on your side in the courtroom. Barrister, Barrister, and Solicitor are bulldog lawyers who’ll fight to protect your rights!

There is no indication on Billie’s firm’s homepage of the states in which its lawyers are licensed to practice.

Every one of Billie’s Tweets and Facebook responses contains this signature:

Billie “BullDog” Barrister, an expert litigator. See www.bulldoglawyer.com.

Does Billie’s signature line constitute improper advertising? Does the link to his web site create any ethical problems?

Although the Model Rules permit Internet advertising, the Model Rules do not specifically address the form or content of such advertising, other than prohibiting false and deceptive advertising. Many states, such as California, Arizona, Louisiana, Virginia, and Florida, have detailed rules or ethical opinions regulating advertising that go far beyond the Model Rule’s general prohibitions.

The federal courts have gotten involved, with two decisions in the last two years from the Second and Fifth Circuits on what form of regulation of lawyer advertising is permissible. Alexander v. Cahill, 598 F.3d 79, 92–95 (2d Cir. 2010), cert. denied, 131 S. Ct. 820 (2010); Public Citizen Inc. v. La. Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011). In addition, there are indications that a blog by a lawyer may be deemed advertising in some circumstances. See, e.g, Christine D. Petruzeell, Don’t Go Blindly into That Law Blog, N.J. Law., Feb. 2008, at 1, cited in 1 Legal Malpractice § 4:2 (Mallen & Smith eds. 2012).

Further, Billie’s use of the phrase “expert litigator” may violate some state ethics rules that limit an attorney’s use of the terms “expert” or “specialty.”

The Case of the Disgruntled Litigator

Billie “BullDog” Barrister is in the midst of a lengthy trial. At the close of the day’s hearing, Judge Aileen Tudor Sentor issues a ruling, which BullDog is convinced is dead wrong and constitutes obvious reversible error.

BullDog, on his way out of the courthouse, pauses on the courthouse steps to Tweet (which is linked to his Facebook page) the following:

Judge Sentor today demonstrated what everyone knows: her rulings will always be overturned on appeal.

That evening, in his office, BullDog angrily posts the following statement on his Facebook page:

Judge Sentor issues rulings in cases that are either the result of her ignorance of the law or her incompetence.

Has BullDog done anything for which he can be sanctioned by the court? Has he violated the Rules of Professional Conduct? Are his statements protected by the First Amendment?

There is always tension between the “robust debate” that the First Amendment allows and improper criticism of the court by an officer of the court. Courts, however, have the inherent powers to punish lawyers for improper behavior, even if that behavior does not violate state or federal statutes or court rules. Courts have sanctioned and disbarred lawyers for improperly accusing a judge of incompetence and bias. See, e.g., In re Evans, 801 F.2d 703 (4th Cir. 1986).

In addition, lawyers have a duty under Model Rule 8.2 to refrain from making false or reckless statements about a judge, and courts have tended to enforce Model Rule 8.2 sanctions even when the lawyer has claimed that the sanctioned activities or words were protected by the First Amendment. Some courts also have found that, as officers of the court, an attorney’s First Amendment rights may be more limited than the public’s. For example, lawyers have been sanctioned for language used in their court filings, including unfounded allegations of ex parte contacts, for statements accusing courts of ignoring the law to achieve a result, for statements in a letter that a judge is “an embarrassment to this community,” and for Internet postings containing unfounded accusations against a judge. See, e.g., Bd. of Prof’l Responsibility, Wyo. State Bar v. Davidson, 205 P.3d 1008 (Wyo. 2009).

Conclusion

Lawyers who are not using social media are being left behind as more and more people employ it as their primary means of obtaining information and interacting with others. Lawyers who use social media, however, need to be cautious so that they are not ensnared by the thicket of ethical rules that might apply.

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