Solos beware: Social media can boost your profile, but trouble lurks

Roughly two-thirds of sole practitioners who responded to a recent ABA survey are using social media for professional purposes. Although platforms such as Facebook or LinkedIn can be useful for business development, counsel should be mindful of ethical considerations that apply.

Two years ago, I described various pitfalls to avoid when posting online. Social Media has benefits, but take care, opinions can get you in trouble, Chi. Daily Law Bulletin, Dec. 6, 2017, Vol. 163, No. 238.

Recent disciplinary cases continue to emphasize that attorneys must be prudent when using social media.

Do not disclose private client information, even if the client’s name is withheld

For lawyers who share their cases through social media, care must be taken to withhold any information that could be deemed confidential, even when the client is not identified.

In Bar Counsel v. Smith III, No. 2019-16, a Massachusetts attorney was reprimanded for posting about his client’s case, even though he withheld the client’s identity.

After presenting a petition for custody of the client’s grandson, the lawyer discussed the case on Facebook, observing that the state opposed his client’s petition, and noting his client had lost custody of the grandson on several prior occasions.

The client eventually filed a disciplinary complaint, following a dispute over a different matter. The state bar concluded the Facebook posts violated the confidentiality provisions of Rule 1.6, because the references to the client’s alleged lack-of-suitability as a parental custodian “would likely be embarrassing or detrimental to the client . . . .”

The board further ruled the lawyer was not protected by withholding the client’s identity, because “[the client] and her daughter both recognized that the Facebook post concerned [the client]” and “it was clear to [the client’s] daughter that the post referred to her mother.” Thus, there was “sufficient evidence to prove a violation . . . .”

Avoid public feuds with opposing counsel

Resist the urge to publicize your disputes with opposing counsel.

Earlier this year, a well-known Detroit attorney was charged with professional misconduct in part for posting derogatory comments about an opponent in a court case. Prominent attorney faces new grievance complaint after Facebook rant, Detroit Free Press, Feb. 20, 2019.

According to the newspaper article, the attorney had a dispute with a prosecutor while representing a client for a traffic offense. Following the hearing, the lawyer described the encounter on Facebook, stating the prosecutor “lost all maturity and professionalism . . [and] went straight into rat mode, stepped into my personal space and derisively started waving papers directly in my face.”

In a more drastic example, a Florida lawyer was accused of conducting a “9-month social media unprovoked attack” against two attorneys. Florida Bar v. Krapacs, No. SC19-277. The lawyer’s posts accused one attorney and a judge of improper collaborations and judicial bias, while intimidating another counsel with on online image that showed a shotgun aimed at a person’s face.

Given the severity of the social media activity along with other alleged conduct, the Florida Supreme Court initially suspended the lawyer from practicing law on an emergency basis, and a referee has recommended a two-year suspension.

Do not use fake online profiles

Although the proliferation of social media presents new discovery opportunities, practitioners must avoid conduct that is deceptive or misleading.

In Office of Disciplinary Counsel v. Miller, No. 32 DB 2017, a Pennsylvania district attorney created a fake social media persona and Facebook page to interact with certain businesses that were suspected of selling illegal products. Through those false accounts, the attorney was able to “like” those business and obtain free product samples for testing.

The state disciplinary authority concluded the conduct was “dishonest” and “crossed the boundaries of professional ethics.” For those and other transgressions, the attorney received a suspension.

“Friending” a judge on Facebook could lead to disqualification

Whether you can appear before a judge that is a Facebook “friend” may depend on where you practice.

Recently the Florida Supreme Court ruled a lawyer’s Facebook “friendship” with a judge before whom the lawyer appears was not grounds for a per se disqualification. Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 271 So. 3d 889 (2018). The decision cites judicial ethics opinions from eight other states that reached a similar conclusion.

Other states have more restrictive guidelines. In California, for example, “it is impermissible for judges to interact [on an online social networking site] with attorneys who have cases pending before the judge, and judges who choose to participate in online social networks should be very cautious.” Calif. Judges Ass’n Judicial Ethics Committee Opinion 66.

Similarly, in Massachusetts, “[t]o uphold public confidence in the judicial system, a judge must not be Facebook friends with a lawyer who is reasonably likely to appear before the judge.” Mass. Sup. Ct. CJE Opinion No. 2016-1.

Further, a Wisconsin appellate court recently reversed a custody order because an undisclosed Facebook “friendship” between judge and litigant created a “risk of actual bias” and the “appearance of partiality.” In re B.J.M, 925 N.W.2d 580 (2019). The Wisconsin Supreme Court has granted a petition for review at 933 N.W.2d 489.

Although Illinois has not yet weighed in, the prudent course is to avoid “friending” a judge before whom you may appear, to eliminate the risk of disqualification or later reversal.

No lotteries for “liking” your page

Finally, bolstering your online profile through paid incentives or drawings is not a wise choice.

The North Carolina State Bar recently issued an advisory opinion rejecting the use of “giveaway” drawings for connecting with a lawyer’s social media through “likes” or similar interactions, for the purpose of increasing the lawyer’s “social media exposure.” N.C. State Bar 2019 Formal Ethics Opinion 6, 10/25/19.

The opinion notes that although “[n]on-incentivized social media interactions” are allowed, paying for a recommendation is prohibited. Because “liking” a lawfirm could be viewed as “personal endorsement and recommendation of that law practice,” the opinion concludes, rewarding that interaction could create the misleading impression that the “like” is based on “prior experience with the firm.”

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In sum, although productive use of a sole practitioner’s social media can boost his or her profile, counsel must be careful to avoid ethical hazards along the way.

© 2019 Law Bulletin Media. All rights reserved.

Monday, December 16, 2019 • Volume 165, No. 244
Reprinted with permission from Law Bulletin Media
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com