The great P.G. Wodehouse had a character who sought privacy. Unfortunately, by a series of events, “She couldn’t have had much less privacy if she had been running a snack bar on a racecourse.” Most attorneys are analogously placed, as their work requires discretion. But the world that Zuckerberg and Bezos built is not designed for discretion.
Recognizing this, North Carolina became the first state to institute a technology CLE requirement. This requirement recognizes that technology is integrated into our lives and into our clients’ lives. And now, lawyers must act accordingly. Here are 10 rules to help you.
This is the principle common in all world religions—the Golden Rule. Treat others as you would like to be treated. Shakespeare wrote that, “All the world’s a stage.” And while that may or may not have been true in Elizabethan England, today a single tweet can have global impact within minutes. A prominent New York attorney learnt this the hard way when he raged at a White House official to “Rot in Hell.” Despite prompt deletion and apologies, the tweet lives on. So if unsure about whether a post crosses the line, there is only one answer. It does. Play it safe. Stop. Walk away. Do not send it into cyberspace.
Attorneys are now ethically bound to understand social media. Per Rule 1.1, Comment 8, of the North Carolina State Bar’s Rules of Professional Conduct, lawyers are required to remain “abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice.” The number of lawyers using Facebook, Twitter, LinkedIn and other social media networks grows daily. So does the number of lawyers doing impermissible and unethical things on those networks. Technology proficiency is not an optional extra. It is integral to law. Like Bismarck, learn from the mistakes of others. It will help you avoid their pain.
This is highlighted by 2014 Formal Ethics Opinion 5, Advising A Civil Litigation Client About Social Media. The Opinion holds that appropriate representation requires counsel to advise clients about the repercussions of social media usage, including silence where appropriate and measured explanations where called for. Absent spoliation issues, counsel may advise client to clean up their social media profile. But this is a treacherous area. Tread carefully.
In Allied Concrete v. Lester, 736 S.E.2d 699 (Va. 2013) the attorney instructed his client to delete a Facebook picture. The picture showed the client in a t-shirt proclaiming, “I love hot moms.” The image was apparently incompatible with the client’s litigation posture as a grieving widower. The court deemed the deletion spoliation and imposed significant sanctions. The attorney was fined $542,000 and was suspended for five years.
The ethics rules continue to apply on social media. For example, former Arkansas Circuit Court Judge Mike Maggio posted online under a pseudonym. One post discussed Hollywood star Charlize Theron’s adoption of a child. Although Judge Maggio did not handle the adoption, his court division did. The Arkansas Supreme Court determined his actual identity and the post, in combination with other issues, cost him his judicial seat. The court later ordered that Maggio not be allowed to return to the bench.
There’s a human impulse to hit back at critics. The scenario is understandable; a rude, false, or misunderstood message lights up social media and the human response is to return fire. But neither attorneys nor clients are used to patiently evaluating options over an insult, and arriving at a well-considered decision. Yet in every incident I have seen, no immediate response was actually required. A delay would have benefited the sender but primal urges can override our logic circuits. Discipline your impulses and desist from the “hip pocket response.” You have little to gain and much to lose.
As another example, no one wants to be in the position of the AmLaw 100 Partner who tweeted to @SCOTUS, a Supreme Court profile that is not run by the government, urging the U.S. Supreme Court not to “screw this up like the Affordable Care Act.” When @SCOTUS responded with “intelligent life?” the partner suggested the account “Go f**k yourself and die.” @SCOTUS had almost 150,000 followers. The suggestion went to all of them. While the partner suffered no permanent repercussions, he needlessly jeopardized his reputation.
Similarly, in Fla. Bar v. Conway, 996 So.2d 213 (Fla. 2008) the court censured an attorney who had denounced a judge as an “evil witch.” Even though the court apparently found his complaints were not without basis—it disciplined the judge for her conduct in the same matter—it found that the duty to respect the court took precedence over free speech rights. The simplest takeaway: never discuss current matters online
Next is the old ethics issue of “who is the client”? Law students dutifully note that it is the organization, but may add a point about the Upjohn warning. That analysis only works in the context of formal representation; other scenarios include meetings in boardrooms, carefully-collated documents, and executed advance waivers. Real life is rarely that tidy.
Social media blurs boundaries. Friends, prospective, accidental, and joint clients may have expectations where the lawyer saw none. Social media compounds this. The informality, pervasiveness, and ease of online communication makes it easy to fall into the trap. The solution here is categorical. When tempted to address such issues on social media—don’t. Do not engage in such discussions online. It can be awkward, but less awkward than a misunderstanding of the relationship.
Relatedly, mind your channels of communication. Attorneys often get messages from constituents: friends, colleagues, and business units. They may come through organizational channels such as internal chat. It can be difficult to parse communications to ensure that only organizational questions are being addressed. Did the query about insurance coverage refer to business or personal issues? The effective lawyer’s only option is to constantly vigilant. Filter messages to avoid creating an attorney client relationship.
Avoid informal discussions of legal matters online. In particular, avoid discussing specific legal issues. I have some experience with this; I wrote a law review article containing a blistering critique of certain corporations. Fortunately, no one reads law review articles. Or it could have been awkward when I ended up representing those corporations.
Now, realistically, most attorneys will discuss some legal issues online. I reviewed several Twitter feeds for this piece. Everything from potential patent developments to speed traps to divergent positions taken by different immigration courts was discussed. You can participate in general discussions. But be careful. Follow the Michael Jordan approach: do nothing that could alienate half your allies. And issue frequent, prominent disclaimers to remind readers of your limited role.
Conflicts require caution. A conflict is a significant risk of material limits to a representation spawned by counsel’s personal interest in a matter. Social media posts that take positions adverse to client interests may create such material limits. And the content of social media posts made by attorney may be evidence of such conflicts.
Here, again I can offer some personal insight. A few years ago, I worked on a high profile Supreme Court case. The case was controversial and continues to arouse strong feelings. It is often debated on legal social media. The impulse to jump in is strong, but it’s just not an option. Otherwise you end up disloyal to a client or divulging secrets—venial sins of the profession. So my social media is devoted to matters such as the Titanic saga, European privacy laws, and the masterful legal arguments made by my young daughters.
Sometimes walking away from social media is not an option. High profile matters are the classical example, which is where rule nine comes in. If you are in full crisis management mode, social media silence is damning. You need to communicate your viewpoint. We see this in Washington. It is equally applicable to any matter of significant public interest; social media must be an integral part of your advocacy strategy. And it may be the only way for your client to fund a defense. That is reality.
So what do you do in such instances? At least three things: 1) vet the social media content to ensure compliance with the applicable rules; 2) make the nature and origin of the message clear; and 3) where appropriate, make the necessary disclaimers. For example, in Hunter v. Va. State Bar, 744 S.E.2d 611, 614-20 (Va. 2013) the Virginia Supreme Court considered an attorney blog to be advertising, because it focused on his successes, which would require a disclaimer on such posts. The rules apply on social media as elsewhere.
Finally, ensure that your organization is technologically prepared. Some bars take the position that representation encompasses an ongoing duty to monitor social media. Have a social media policy. Explain it to your staff. Have regular reminders. Point out violations. Rein in “gray accounts,” those which are not limited to company communications, but still carry company media.
This is an evolving area. I’m responding to some Christmas and holiday cards, which would have horrified the 1963 American Bar Association. The ABA insisted, “Christmas cards and other season greetings should never be sent in the firm name or by an individual in his capacity as an attorney.” Those concerns seem antiquated. Someday, social media concerns will seem antiquated. But today is not that day.
Saad Gul (@NC_Cyberlaw) is a partner at Poyner Spruill LLP. An appellate and regulatory litigator, he is co-chair of the Privacy and Cybersecurity Practice.