Recent Developments in the Law of Professional Responsibility: Lawyers and out-of-court Misconduct David Gottlieb

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1 Recent Developments in the Law of Professional Responsibility: Lawyers and out-of-court Misconduct David Gottlieb May 29-30, 2014 University of Kansas School of Law

2 Developments in the Law Professional Responsibility The Lawyer and Social Media Presented by David J. Gottlieb, Emeritus Professor University of Kansas School of Law May 30, 2014 The advent of social networking platforms such as Facebook, Twitter and Linked In has fundamentally changed at least some of the ways in which people communicate. These means of communication are, at least for the present, ubiquitous. Facebook has a billion users. Americans log 10.5 billion minutes on facebook every day. Twitter now carries upwards of 400 million followers. As of 2009, 70% of lawyers used some form of social media. 1 75% of law firms employ social networking platforms. A different survey reported that 85% of lawyers were reported to have a linked-in presence. 22% of lawyers reported that their firm maintains a blog. Lawyer Advertising and Social Media Because these means of communication are now vitally important means by which lawyers interact with the public, facebook and social media have become tools for lawyer advertising. Their use should not necessarily be fraught with problems if lawyers understand these media as tools for advertising in which normal professional responsibility and advertising rules apply. However, aspects of these new media have presented problems for lawyers and regulatory authorities. Thus, for facebook, some of the problems have occurred in sites where lawyers personal sites include hundreds of friends, some of whom the lawyer does not know. In that setting statements about lawyer practice may be construed as advertising. 2 If so, lawyer speech is subject to the same limitations concerning accuracy, limits on testimonials, and comments on expected results as more traditional forms of advertising. During the presentation, I will discuss a recent California ethics opinion that gave examples of forms of communication that violated California ethics and advertising limits. In order to avoid false advertising, lawyers must be wary not only of their own posts, but of the posts of friends as well. For business sites, lawyers are responsible for monitoring the content of posts. Thus if an individual posts false, misleading or otherwise inappropriate comment, the lawyer or firm has a responsibility to ask the individual to remove the comment. 3 Lawyer use of LinkedIn has presented a different problem with respect to advertising rules. Model and Kansas Rules 7.4 limit the ability of attorneys to claim that they are specialists in areas of legal practice. LinkedIn profiles have invited firms to craft profiles where firms list themselves as specialists, and individual profiles not only may have such designation, but individuals may be nominated for different categories by colleagues. A series of Ethics opinions have declared that lawyers must avoid listing themselves as specialists unless they have satisfied the requirements of Rule 1 Lackey and Minta, Lawyers and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging, 28 Touro L. Rev. 149, 153 (2012) 2 State Bar of California, Standing Committee on Professional Responsibility and Conduct, Formal Opinion (attached). 3 New York State Bar Association, Commercial and Federal Litigation Section, Social Media Ethics Guidelines (March 18, 2014) at 4. 1

3 7.4. LinkedIn profiles concerning skills and expertise should not be considered to be the equivalent of a specialty, although Florida has reached a contrary conclusion. The use of Twitter as an advertising platform presents a particular problem. States typically require disclaimers and announcements of content that may take a reasonable number of words to convey. Twitter is limited to messages of 140 characters. It may be impossible to convey the correct disclosure information within the 140 character limit, 4 although some commentators have suggested that the use of standard abbreviations in twitter may make such disclosure possible. Ethics bodies and writers have also issued repeated warnings to attorneys to insure that responses made in blogs or social media sites to general legal questions not be taken to be solicitations and that attorneys make certain that general communication about legal matters or issues not be construed as creating an attorney-client relationship. 5 The New York Social Media ethics guidelines caution lawyers in instant messaging, chat room or other live communication settings not to engage in conduct that could be considered as soliciting business. The rules state that if a lawyer does receive a request for help during a social media conversation, it may be legitimate to respond, but that the lawyer must do so by non-public means. Lawyers and their friends Review of Evidence on Social Media Social media are relevant to a lawyer s work in ways other than advertising. Opposing parties may have evidence on social media platforms that are relevant to litigation and that would be useful if obtained by the lawyer. Some of this social media information may be generally available to anyone who is a member of the network. Accessing such information for the most part may be no different than accessing public information generally. There is, however, one caveat that enterprising attorneys need to be aware of. Some of these informational sites may automatically notify the individual whose material is being viewed of the login. The information may allow the person whose site is viewed the entire profile of the visiting lawyer. Such automatic messages have been sufficient to be considered an ethical violation when done by a lawyer attempting to visit a prospective juror s site. In any event, the lawyer must be aware of the possibility that information about herself or her agent is being communicated. Beyond that issue, facebook and other social media sites may include publicly available material and material that is private in the sense that it is restricted to friends. To the extent that the site contains impeaching formation that may be valuable for the lawyer to see, there is a temptation for the lawyer to attempt to become the friend of the owner of the site. Ethics opinions have attempted to resolve the circumstances under which a lawyer, agent or client may attempt to friend a prospective adversary or witness to obtain information from that individual s social media site. The answer may depend on whether the individual is believed to be represented by counsel in the matter about which information is being sought. For the unrepresented information, the principal guidance is provided by Rule 4.1, which prohibits a lawyer from making a false statement of material fact to a third person. At the very least, that means that the lawyer attempting to obtain access by friending another individual is required to 4 Lackey and Minta, supra note 1, at See, Patrick, With Friends Like These, California Bar Journal, April

4 use his or her name and not attempt to mask her identity. If asked more information, the lawyer should provide the information requested or withdraw the request. 6 Some states have been more demanding, and have required the attorney or agent to inform the friended individual of the lawyer s involvement in the litigated matter, or to provide the lawyer s affiliation or reason for the request. 7 Different considerations apply when the individual is represented by counsel. In that case, an attempt to contact the individual on the matter in question, without going through the individual s lawyer, is barred by Rule 4.2. The rule does not prohibit contact by the party himself, but the lawyer would need to insure that such contact was made honestly and consistently with the state s position on non-lawyer contact with represented individuals. The Judge as friend There has been significant controversy concerning judges and lawyers who appear before them becoming facebook friends. Outside of social media, it is inevitable that lawyers and judges will meet and even form friendships. Such friendships, of course, may need to be disclosed in particular cases. The question of whether similar disclosure obligations exists for facebook friends has created some uncertainty, perhaps because the universe of facebook friends can be so large, and the actual friendship can seem tenuous at best. Nevertheless, while some (but not all) ethics authorities have concluded that judges and attorneys can participate in social networks, the same authorities have cautioned that judges must comply with the Code of Judicial Conduct and avoid any conduct that would undermine the judge s integrity or impartiality, or create an appearance of impropriety. 8 The ABA ethics opinion on the subject cautions judges that they may not assume that material communicated on social networking sites will remain private, and that judges should refrain from any comments which, if disseminated, would have the potential to compromise judicial integrity or the appearance of integrity. Obviously, judges should refrain from any case-related comments that could be interpreted as ex parte communication. Even more broadly, judges should avoid any behavior that suggests that a particular lawyer is in a position to have undue influence on the judge s decision. Social Media Sites and Posts as Evidence It may be easier to hit a delete key than to shred a document, but it is important for attorneys to recognize that document retention rules that apply to physical documents may also apply to posts in electronic media. Kansas Rule 3.4 prohibits a lawyer from unlawfully altering destroying or concealing a document or other material having evidentiary value or counseling or assisting another person to do so. In litigation, a lawyer may have a duty under common law or civil rules to ensure that potentially relevant evidence is not destroyed once a party reasonably anticipates litigation. If a duty to preserve evidence exists, a party or nonparty may not delete information from a social media profile that is subject to the duty to preserve. 9 Where no duty to preserve evidence exists, for example, when litigation is not pending or reasonably anticipated, a lawyer may more freely advise a client on what to maintain or remove from a social media website. 6 New York State Bar, Social Media Ethics, supra, at 8. 7 Id. at 9, citing San Diego County Barr Ass n Legal Ethics Commission, Op (2011); Philadelphia Bar Ass n Prof. Guidance Comm. Op Bar (2009). 8 ABA, Formal Opinion 462, Judge s Use of Electronic Social Networking Media (Feb. 21, 2013). 9 New York State Bar, Social Media Ethics, supra, at 11. 3

5 Facebook as a semi-public forum Most of all, lawyers need to be aware that posts on social media, even personal social media sites, are rarely, if ever truly private. Statements made in a facebook post cannot be assumed to be confidential, even if the facebook site is a personal site. Compromising photos that would damage a lawyer s reputation should not find their way to facebook, any more than they should find their way to a newspaper. Derogatory statements about judges or opposing counsel should not be posted on a social networking site, since they may be disseminated more broadly. For example, lawyers must take care not to post comments that reveal confidential information. An Illinois public defender found herself discharged from work because of blogging posts that disclosed client information. 10 Information responding to negative reviews must still respect client confidentiality. The posting confidential information led to disciple in In re Skinner, 740 S.E.2d 171 (Ga. 2013), where the Georgia Supreme Court rejected a petition for reprimand (and imposed more serious discipline) where a lawyer admitted to disclosing damaging confidential information concerning a client online in response to an unfavorable review of the lawyer. 11 Lawyers have rights to self-defense in cases where actions are likely to be brought against the lawyer, but this right does not permit a lawyer to simply abandon the lawyer s obligation to maintain confidentiality every time a client complains on-line. More broadly, lawyers have obligation to be truthful and behave professionally in ways that do not constrain members of the general public. Lawyers are obliged under Rule 8.2 not to make a statement that the lawyer knows to be false or with reckless disregard as to it truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. More generally, it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, engage in conduct that is prejudicial to the administration of justice and engage in any other conduct that adversely reflects on the lawyer s fitness to practice law. Rule 8.4. Posts disparaging judges that for non-lawyers could be defended as letting off steam have been the basis for professional discipline when engaged in by lawyers. 12 Posts showing guys gone wild have come back to haunt litigators before judges or when seeking other employment. For better or worse, there are some parts of our professional lives we must attempt to protect even when we are off the clock. Lawyers who use facebook and who wish to avoid professional embarrassment must take care about the information and photos posted on social media sites. Attachments The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No American Bar Association, Formal Opinion 462, Judge s Use of Electronic Social Media, February 21, 2013 Commercial and Federal Litigation Section, New York State Bar Association, Social Media Ethics Guidelines, March 18, Lackey and Minty, supra, at See generally Harvey, McCoy and Sneath, 10 Tips for Avoiding Ethical Lapses When Using Social Media, Business Law Today (January 2014). 12 Id. at

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