Social media has benefits, but take care, opinions can get you in trouble

Wednesday, December 6, 2017 • Volume 163, No. 238
© 2017 Law Bulletin Media. All rights reserved.
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com

Although Facebook and other social media sites are useful tools to boost the sole practitioner’s legal profile, casual and unfiltered use of those platforms can lead to disciplinary issues.

Many self-employed attorneys merge their personal and professional postings by maintaining, for example, a single Facebook account. Because a lawyer’s professional duties may be impacted by spontaneous posts and exchanges, solos must conform their online behavior to applicable ethical standards.

Here are some basic tips to remember when sharing your next post or message.

Keep your comments on others to yourself

Following that tough day with an unyielding judge, a difficult opponent or an argumentative client, resist the impulse to publicize your dissatisfaction. Such online comments could easily violate a number of disciplinary rules regarding attorney communications and comportment.

Trying to avoid exposure by withholding the name of your nemesis is not a successful approach. As long as the involved parties can reasonably be determined, and the communications are problematic, the attorney may be subject to discipline. See In re Johns, 793 S.E.2d 296 (S.C. 2016) (probate judge disciplined for Facebook comments about pending case; although case was not referenced by name, “it was inappropriate for him to make the statements as it would be clear in the community to what he was referring”).

Further, such posts could lead to trouble if the content is considered subjectively inaccurate.

For example, opining that a judge had no grounds for a ruling can be deemed a false statement, if the disciplinary panel concludes the judge’s decision was supported. See In re Discipline of Hafter, 2017 Nev. Unpub. LEXIS 1036 (Nev., Nov. 17, 2017) (attorney suspended in part for posting on Facebook that judge’s refusal to change trial date lacked any proper basis; statements not subject to First Amendment protection because they “were not truthful.”)

Responding to clients with instant messages may not be enough

Keep in mind that brief exchanges with clients through social media may not satisfy the ethical duty to keep them fully informed of the matter at hand. See State v. Garrison, 894 N.W.2d 339 (Neb. 2017) (cryptic Facebook messages to client violated disciplinary rule on client communications where counsel “failed to adequately answer the client’s questions and adequately explain what was happening regarding the status of the client’s lawsuit.”).

Obtain client’s permission before promoting past work online

Make sure to obtain the client’s permission before identifying his or her matters for promotional purposes. See In re Emery, 799 S.E.2d 295 (S.C. 2017) (attorney reprimanded in part for violating client confidentiality for “congratulating” clients after each real estate closing on Facebook without permission.)

Don’t respond to an unfair client review by divulging private facts

While attorney directories such as Avvo or Lawyers.com are useful marketing methods, an unfairly negative review on those sites may cry out for a response. Counsel who choose to rebut a poor review must understand that maintaining client confidentiality — including facts that could circumstantially identify the client — is paramount.

In People v. Isaac, 2016 Colo. Discipl. LEXIS 109 (Colo. 2016), an attorney fought back against two negative reviews by revealing facts about the clients in rebuttal. The Colorado Supreme Court, using similar cases from four other states as a “yardstick,” imposed a suspension and admonished counsel that “[l]awyers’ disclosure of client confidences erodes the trust that undergirds the lawyer-client relationship.”

Similarly, in In re Skinner, 758 S.E.2d 788 (GA. 2014), after a client posted negative reviews on three sites, the attorney answered with a defense that referred to the client by name, identified her employer and a boyfriend and divulged the fee that was paid. The attorney was reprimanded for disclosing confidential client information.

Even responding with accurate information and withholding the client’s name can lead to discipline, if the client’s identity can be deduced and the information is nonpublic. See In re Mahoney, No. 2015-0141 (D.C. Bar June 9, 2016) (informal admonition for disclosing accurate but confidential client information in response to critical review; although attorney withheld client identity, he divulged information “that could lead back to [the] client.”)

When using Facebook, do not “friend” a foe

Because lawyers are trained to investigate their matters thoroughly and gather all available facts, attention naturally flows to an adversary’s Facebook account, where relevant information may be easily accessible. Resist any urge to probe for nonpublic material by “friending” another party.

For instance, an overly creative attorney who set up a fake Facebook page, to elicit information from a witness, was disciplined for his conduct. Disciplinary Counsel v. Brockler, 48 N.E.3d 557 (Ohio 2015) (prosecutor suspended for setting up fictitious Facebook account to interact with third-party witness and elicit incriminating statements against defendant).

Moreover, using your real name on Facebook, to “friend” an opponent for the purpose of obtaining posted information, also may result in sanctions. See Robertelli v. New Jersey Office of Attorney Ethics, 134 A.3d 963 (N.J. 2016) (charges pending against two attorneys accused of having paralegal become Facebook friend of opposing party to access posts).

When in doubt, reflect and consult

In sum, sole practitioners should be circumspect when using valuable social media tools. While these platforms are designed for lively, real-time discourse, counsel must always take a measured approach that accounts for ethical requirements. Reflect before you post, and seek a second opinion from a colleague before taking a step you may regret.

For a thoughtful and comprehensive review of social media ethics guidelines by the New York Bar Association, see their website, at nysba.org/socialmediaguidelines17.