Now in Legal Rebels:
Posted Feb 01, 2011 10:20 am CST
Sean W. Conway thought he was writing an ordinary blog post. He never suspected he would wind up facing ethics charges.
“I felt completely within my rights as a citizen, exposing what I thought was an injustice,” he says. It seemed to the then-35-year-old defense attorney that a Florida circuit court judge was methodically depriving criminal defendants of their right to a speedy trial. Instead of allowing them four or five weeks to prepare for trial, as was routine, Judge Cheryl Alemán was asking defendants whether they were ready for trial only about a week after their arraignment, according to Conway.
This, he believed, was a deliberate ploy by Alemán to force defendants to ask for a continuance, thus waiving their right to a speedy trial.
He tried to fix the situation by going through appropriate channels. “I notified the judicial watchdog agency and nothing came of it,” he says.
Then Conway tried another tack. On Oct. 30, 2006, he put 11 paragraphs on JAABlog, where attorneys discuss issues concerning the Broward County Court. “I thought the most appropriate thing was to expose what [Alemán] was doing,” he says.
Conway’s blog post did that—and more. After asserting that Alemán was trying “to make defendants waive their right to a speedy trial,” the post excoriated the judge. It called Alemán—who died of lung cancer on Dec. 2, 2010—an “evil, unfair witch,” “seemingly mentally ill” and “clearly unfit for her position and knows not what it means to be a neutral arbiter.”
Conway chose his invective deliberately. “I wanted to protect people, and the only power I had was my words, so I was going to use the most powerful ones I had.”
The Florida Bar, however, concluded that he had violated five ethics rules, including Rule 4-8.2(a) (making false or reckless statements regarding the qualifications or integrity of a judge) and Rule 4-8.4(d) (engaging in professional conduct that is prejudicial to the administration of justice). Conway argued that his actions were protected by the First Amendment, but the Florida Supreme Court rejected this. In the end, Conway acquiesced with a public reprimand and a fine of $1,250.
B. Carlton Terry Jr. also ran into ethics problems because of social media. The North Carolina judge was publicly reprimanded by the state’s Judicial Standards Commission because Terry became a Facebook friend of an attorney appearing in a case before the judge, and the two men exchanged a few brief online comments regarding the proceeding.
Kristine A. Peshek lost her job because of her use of social media. She was an assistant public defender in Illinois who blogged about the cases she worked on. Because she allegedly revealed confidential client information, Peshek was fired and then charged with violating legal ethics.
Conway, Terry and Peshek are all part of a growing problem. “There’s an increase in the number of attorneys running afoul of professional conduct rules when they use social media,” warns Renee N. Knake, who teaches professional responsibility at Michigan State University College of Law.
One reason is that more attorneys are using social media such as blogs, Facebook and Twitter. The ABA’s 2010 Legal Technology Survey Report found that 56 percent of attorneys in private practice have a presence in an online social network like Facebook, LinkedIn, LawLink or Legal OnRamp. Only 43 percent had such an online presence in the center’s 2009 survey and 15 percent in 2008.
Another reason so many attorneys are running into ethics problems is that they simply don’t know what they can and can’t do in the realms of social media. There’s much ambiguity on how the ethics rules apply to these new technologies.
“It is unclear what constraints there are. The law is still very much in its infancy,” says Andrew M. Perlman, a professor at Suffolk University Law School and the reporter for the ABA Commission on Ethics 20/20 Working Group on the Implications of New Technologies.
The working group is studying ethics issues arising from lawyers’ use of social media and other technologies. It is part of the ABA Commission on Ethics 20/20, which is formulating proposals to clarify the rules in this area—and may even recommend significant amendments to the ABA Model Rules of Professional Conduct.
Attorneys have powerful motives for using social media. For starters, they provide a new way for lawyers to market themselves to in-house counsel.
When researching which outside counsel to hire, 27 percent of in-house counsel put a lot of weight on blogs written by potential hires, according to the 2010 Corporate Counsel New Media Engagement Survey. Those counsel consider blogs on relevant topics as “most important” in the selection process. (The e-mail survey conducted in March and April 2010 received responses from 164 in-house counsel around the nation.)
Social media are somewhat less useful in marketing to individuals who want attorneys to handle their personal matters, according to a nationwide landline phone survey of 1,004 adults conducted by the Harris Poll last September. One of the questions in that survey, commissioned by the ABA Standing Committee on the Delivery of Legal Services, asked how respondents would look for a lawyer to handle a personal matter. Eighteen percent said they would be “very likely” or “somewhat likely” to use social network sites like Facebook. Fifteen percent were similarly likely to use blogs, 14 percent e-mail discussion lists and 9 percent Twitter.
Social media also can be an excellent research tool for attorneys handling contested matters. Reviewing sites like Facebook, LinkedIn or YouTube can uncover valuable (and embarrassing) information about the other side and its witnesses.
Linda Lea Viken, a family law specialist who heads the Viken Law Firm in Rapid City, S.D., offers examples from her practice and that of her colleagues:
• A wife discovered her spouse was philandering when she went to his Facebook page, found a picture of him with another woman, then clicked on the picture and was taken to the other woman’s page. That displayed a picture of the pair drinking and embracing in a more-than-friendly fashion.
• A spouse is supposed to be watching the kids but is partying instead. Then a video of the spouse at the party is posted on YouTube.
• A mother, fighting for child custody, claimed the father had a terrible temper. The father denied it on the stand, then was confronted with a self-description he had posted on his Facebook page: “If you have the balls to get in my face, I’ll kick your ass into submission.”
Social media “has saved lawyers an incredible amount of time and effort,” Viken says. “There’s a wealth of information.”
However, lawyers who use social media sites for research must be wary of potential legal ethics traps. ABA Model Rule 4.2 forbids communication with a person represented by another attorney, and this sometimes prohibits access to social media posts. If a social media post is publicly available—like a blog or an or dinary webpage—an opposing attorney can access the post, according to the reasoning of the Oregon State Bar Association in Opinion No. 2005-164 (August 2005). That opinion declared a lawyer could access the website of an opponent represented by counsel; it was the same as “reading a magazine article … written by that adversary.” The attorney was simply reading “information posted for general public consumption … not communicating with the represented owner of the website.”
But the situation is different if an attorney (or attorney’s agent) must interact with a represented party to gain access to the party’s social media post. Suppose, for instance, a lawyer seeks to friend an opponent represent ed by counsel to access that opponent’s Facebook page. This communication between the lawyer and the opposing party would violate Model Rule 4.2, according to Oregon State Bar Opinion No. 2001-164 (January 2001).
Another issue arises when an attorney seeks access to the social media posts of someone unrepresented by counsel, such as an opposing party’s witness: To what extent can an attorney use subterfuge to convince an individual to grant access to his otherwise private social media posts?
Model Rule 4.1(a) forbids a lawyer from making “a false statement of material fact or law to a third person,” and Rule 8.4(c) forbids a lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” Both these strictures are violated when an attorney friends an individual under false pretenses, according to ethics opinions from the New York City Bar Association and the Philadelphia Bar Association.
However, the New York City bar says an attorney (or agent) can withhold strategic information when making a friend request. “An attorney or her agent may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request,” the bar’s Committee on Professional and Judicial Ethics stated in Opinion 2010-2 (September 2010).
This seems reasonable to Stephen Gillers, who teaches legal ethics at New York University Law School and is a member of the ABA’s Ethics 20/20 Commission. “This is no different than if a lawyer or investigator learns that a witness typically hangs out at a bar on Saturday nights, and the investigator sidles up to the witness and starts a conversation. If the investigator doesn’t misrepresent himself or his purpose, then it’s OK,” Gillers says.
The Philadelphia Bar Association disagrees. In Opin ion 2009-02 (March 2009), the bar’s Professional Guidance Committee stated that legal ethics require an attorney (or agent) to make a full disclosure of the motive for making a friend request. Withholding this information is deceitful, the committee wrote, because it “omits a highly material fact—namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information … to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access.”
Ethics opinions also disagree on whether a judge can friend an attorney on Facebook or other social media if the attorney might appear before the judge in court. Florida says this would be unethical. Its Judicial Ethics Advisory Committee Opinion No. 2009-20 (November 2009) reasoned that because the judge’s social media page would list the attorney as a friend of the judge, this would convey the impression that the attorney is in a special position to influence the judge. It thus would violate Canon 2B of the state’s Code of Judicial Con duct —which is similar to Rule 2.4(c) of the ABA Model Code of Judicial Conduct. Moreover, such an online friendship would violate state judicial Canon 5A—akin to ABA Model Code Rule 3.1(c)—by casting “reasonable doubt on the judge’s capacity to act impartially.”
The attorney involved in this social media relationship could face ethics charges, too. That’s because ABA Model Rule of Professional Conduct 8.4(f) forbids a lawyer from knowingly assisting a judge in behavior that violates the rules of judicial conduct.
Kentucky, New York and South Carolina take a very different approach to this issue. Judicial ethics authorities in those states have opined that friending someone on social media does not imply those online friends have any special pull. The Ethics Committee of the Kentucky Judiciary explained it this way in its Formal Judicial Ethics Opinion JE-119 (January 2010):
The committee’s view is that the designation of a “friend” on a social networking site does not, in and of itself, indicate the degree or intensity of a judge’s relationship with the person who is the “friend.” The committee conceives such terms as “friend,” “fan” and “follower” to be terms of art used by the site, not the ordinary sense of those words [sic].
Although these three states have concluded it is ethical for judges to become online friends with attorneys who practice before them, two of the states have added a caveat. Authorities in Kentucky and New York have warned that a judge must consider carefully whether, in any particular case, the judge’s social media connections with an attorney—alone or in combination with other facts—rise to the level of a “close social relationship.” If such a relationship exists, the judge must disclose it to opposing counsel or recuse himself from the case or both. And Kentucky authorities noted that because social media provide so many opportunities for judges to engage in ex parte contacts, make improper public comments on pending cases or otherwise violate judicial ethics, judges should be “extremely cautious” in their use of social media.
Terry learned this the hard way. On Sept. 9, 2008, while he was presiding over a child custody and child support hearing, Terry became Facebook friends with defendant’s counsel in the proceedings, Charles A. Schieck. During the next two evenings, the men exchanged some brief and relatively anodyne comments on Facebook concerning the ongoing hearing. One night, for instance, Schieck posted, “How do I prove a negative?” referring to the issue of whether his client had engaged in an extramarital affair. Terry posted he had “two good parents to choose from” and he felt “that he will be back in court” (i.e., the case was not settled). Then Schieck posted, “I have a wise judge.”
The state’s Judicial Standards Commission publicly reprimanded Terry for his online behavior. The commission found Terry had violated the North Carolina Code of Judicial Conduct by, among other things, engaging in ex parte communications with counsel and failing to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Overall, however, friendships in social media are less threatening to judicial impartiality than are friendships in the real world, according to some experts. “These [online] communications are seen by the public, so there is less to worry about than when a lawyer calls up a judge in the real world,” says David Hricik, a professor at Mercer University School of Law and a former chair of the ABA Section of Intellectual Property Law’s Committee on Professional Responsibility. “Do we want people to hide their relationships with judges? Shouldn’t we want this to be in the open?”
Other experts assert that the public nature of social media relationships is the crux of the problem. “Law yers shouldn’t be friending judges, even ones they are not appearing in front of. It has the appearance of impropriety,” says Frederic S. Ury, a partner at Ury & Moskow in Fairfield, Conn., and co-chair of the 20/20 working group. “If someone sees I have a judge as a friend, it raises the issue of [whether] I have a certain amount of pull.”
The rules on advertising have produced many uncertainties for lawyers using social media. It is unclear, for instance, whether these rules even apply. “A lot of stuff in social media seems more like a conversation among friends than an ad, but if a lawyer is involved, it may be considered … an advertisement under the ethics rule,” says Paul H. Arne, a partner at Morris Manning & Martin in Atlanta.
Distinguishing between personal communications and advertisements in social media can be tough. “If I get a substantial verdict in a case and I put all the details of the case on my Facebook page, is that advertising or am I just communicating to my 149 friends on Facebook? I don’t know,” Ury says.
Some experts, however, think the answer is fairly clear. “A long series of ethics opinions [including ABA Formal Opinion 10-457 (2010) and Arizona Ethics Opinion 97-04 (1997)] indicate that if online activities promote a law practice, it is attorney advertising,” says Michael P. Downey, a partner at Hinshaw & Culbertson in St. Louis and a member of the working group. “If I announce a court victory on Twitter, it is an ad. [But] if you blog and never mention you’re a lawyer and never mention your law firm, it is probably not an ad.” He adds that there’s an easy way for attorneys to determine whether their social media posts should be considered advertisements: “If I’m doing this to help get myself hired, it is an ad.”
When social media posts are advertisements, it can be difficult—or even impossible—to make these ads comply with ethics rules. For instance, many states require attorney advertisements to contain specific disclosure and disclaimer statements, but it can be impractical to shoehorn these statements into social media. “A tweet has only 140 characters, so you can’t comply with the disclosure rules and say anything meaningful,” says Diane L. Karpman, founding attorney of the legal ethics firm Karpman & Associates in Beverly Hills, Calif. “Some disclosures are longer than 140 characters.”
Some states require attorneys’ ads to be approved or preapproved, but social media content often changes rapidly, as people post replies to one another. Obtaining approval (or preapproval) for all the different versions of a blog, much less a Twitter feed, is completely impractical. “The mechanisms and basic ideas of social media are almost fundamentally incompatible with many states’ rules on attorney advertising,” Karpman says.
Nathan Darling, president of the Legal Marketing Association, argues that the advertising rules need to be radically revised. Because many of those who read attorneys’ blogs, Twitter feeds and other social media posts are sophisticated consumers of legal services—and because more information is better for consumers—advertising regulations should not restrict attorneys from communicating with nonlawyers, he reasons. Instead, regulations should try to ensure that the attorneys’ communications are not misleading.
However, even a simple prohibition on false or misleading information—like the one in Model Rule 7.1— can be tricky to apply to social media. Many social media are interactive, so this rule may require attorneys to police not only what they post but also what their users post in reply.
Consider, for instance, an attorney who has a listing on LinkedIn. All the information she posts about herself must be correct or she will violate Rule 7.1. But what about information posted by others? LinkedIn (and some other social media) allows users to “recommend” others and praise their work. If a client posts a wonderful recommendation, must that praise comply with Rule 7.1?
Yes, according to the Ethics Advisory Committee of the South Carolina Bar, which stated in Ethics Advisory Opinion 09-10 (2009) that any such recommendation must not “create unjustified expectations or otherwise mislead a prospective client.” The Ohio Board of Com missioners on Grievances and Discipline also issued an opinion to the same effect, No. 2000-6 (2000).
Attorneys must therefore carefully vet the recommendations and endorsements that get posted to their social media sites. “One of my partners received a recommendation on LinkedIn, but it was such fulsome praise my partner had to turn it down,” Arne says. “It was a one-click ethics violation.”
Ethics rules might require even more from attorneys. The South Carolina Bar stated, in Advisory Opinion 99-09 (1999), that a lawyer must act against too-favorable comments posted by a client on the client’s own online site. Once a lawyer learns of these comments, the lawyer must tell the client to conform its statements to the ethics rules. If the client refuses, the lawyer must stop representing the client, or the lawyer will be deemed to have authorized or adopted the comments.
Experts are divided on how, or whether, legal ethics rules need to be revised to address social media. Some say the rules have to be updated. “The word technology is not in the Model Rules or commentary. You can’t be in the business world and not have the word technology mentioned,” Ury says.
Others say the rules are fine; all that’s needed are some tweaks to the comments or perhaps a white paper. “The ethics rules ought not to be changed every time a new phenomenon comes along,” Gillers says. “Many of the rules are at a high-enough level that they can be applied to new technology without revision.”
Everyone, however, seems to agree that attorneys need clarification on what they can and cannot do in social media. Says Hricik, “Facebook and LinkedIn and other social media are going to grow as sources of business for a lot of law firms. Bar associations need to help everyone by giving guidelines on these things, because attorneys are using them.”
Steven Seidenberg is a lawyer and freelance journalist in Fanwood, N.J.
Steven Seidenberg is a lawyer and freelance journalist in Fanwood, N.J.
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