All That Twitters Is Not Gold

Who remembers the practice of law before e-mail and computers? I do. In those “good old days,” bar association activities, law clubs, and Martindale-Hubbell were about as adventurous as many attorneys would become when it came to social networking. Today, sites like Facebook and LinkedIn are used by lawyers of all ages, and not merely for socializing purposes.

From an ethics perspective, social networking activities raise cutting-edge issues that are beginning to be addressed with more frequency by courts and bar counsel. From a law firm perspective, as the ethical parameters of these activities become clearer, decision-makers will be in a better position to craft policies and to develop training programs to ensure that firm attorneys and other personnel comport with applicable rules of professional conduct. In this article, I discuss some of the more important ethical developments that are occurring in this area below.

False or Misleading Communications and Lawyer Advertising

No one should be shocked to learn that false or misleading statements on a social networking site or blog are often likely to be deemed unethical. Surprisingly, though, even truthful statements on Facebook have led to negative repercussions for at least one attorney in Texas. That attorney requested a continuance because her father had supposedly died. But the trial judge went online to Facebook and discovered that the attorney, in fact, had spent the time drinking and partying. Apparently, the attorney quickly “defriended” the judge immediately after the discrepancy was brought to the attorney's attention.

Another example of truthful statements on Facebook creating ethical issues arose recently in Florida. There, the State Judicial Ethics Advisory Committee has opined that judges cannot “friend” attorneys who practice before them, because it creates the appearance of undue influence.

Moreover, online statements by clients regarding an attorney's legal abilities can run afoul of a state's advertising ethics rules. A good example is South Carolina Ethics Advisory Opinion 09-10 (2009). There, a Web site generated an attorney profile without input from the lawyer himself. But the lawyer had the ability to “claim” the profile and make changes to it. Because of that ability, the South Carolina Committee indicated that the lawyer was ethically responsible for the profile, including subsequent amendments by third parties. Like many jurisdictions, South Carolina closely regulates client comments, testimonials and endorsements. Therefore, stated the Committee, “a lawyer should monitor a 'claimed' listing to keep all comments in conformity with the Rules. If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.”

Some commentators have observed that the South Carolina opinion places an unfair burden upon attorneys, who may not be aware of subsequent amendments to their profile by third parties and who may not be able to discontinue participation in the service. It will be interesting to see if other jurisdictions follow the approach of this South Carolina opinion.

Another advertising ethics issue is raised by sites like LinkedIn, which includes a section on “specialties.” Some jurisdictions have ethical requirements like Maryland Rule 7.4(a), which provides that “[a] lawyer shall not hold himself or herself out publicly as a specialist.” Attorneys in such jurisdictions will likely face grievance proceedings if they try to make use of such sections on Web sites like LinkedIn.

Breach of Confidentiality

A bedrock principle of attorney-client relationships is that, absent informed consent, lawyers must not disclose the secrets and confidences of their clients. Indeed, ABA Model Rule 1.6 goes even further and requires that all information relating to a representation, whether “secret” or not, must be kept confidential by the attorney unless the client dictates otherwise. These precepts apply as much to Twitter, Facebook, and blogs, as to any other form of communication.

Consider the Illinois assistant public defender who recently lost her job and is being recommended for disbarment by state disciplinary authorities. This attorney regularly discussed her cases on her blog in a manner pursuant to which her client could be identified. For example, she referred to a client named “Dennis” who appeared in court on a specific date. She blogged that her client came to court “stoned [on cocaine], right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn't being managed well.” Granted, the former assistant public defender's case wasn't helped by derogatory references to judges on her blog. She apparently referred to one as “a total a**hole” and another as “Judge Clueless.” But even apart from these unfortunate statements about judges, this Illinois proceeding demonstrates how careful lawyers must be before blogging about their clients.

Misrepresentations to a Non-Lawyer

Social networking sites can be a great source of information for litigators attempting to dig up dirt on the other side. But there are ethical lines that cannot be crossed to obtain that information. In a recent case arising in Pennsylvania, the Philadelphia Bar Association concluded in an ethics opinion that a lawyer could not hire someone to log onto Facebook and ask to be an opponent's “friend” in order to gain access to the opponent's information. Such a scheme, the opinion reasoned, violated Rule 8.4(c) (prohibiting attorney deception and misrepresentation) and 8.4(a) (forbidding attorneys form using agents to violate ethical principles) of the Pennsylvania Rules of Professional Conduct.

Whether this Philadelphia opinion will be followed in Pennsylvania or elsewhere remains to be seen. To me, hiring someone to “friend” an opponent on Facebook seems comparable to hiring someone to purchase items in a store that violate the client's patent. The latter is ethical in many if not all jurisdictions, and perhaps the Facebook “friend” will ultimately be exonerated as well.

Conflicts of Interest Through the Inadvertent Creation of an Attorney-Client Relationship

Years ago, law firms used to worry a lot about participating in “beauty contests” with potential clients. The nightmare scenario would go something like this. A company comes to town and interviews several law firms regarding potential representation. The company supplies some confidential information to the interviewees, who then tell the company ideas as to how they would handle the representation. The company then retains one firm. An unsuccessful interviewee is later contacted by the other side in the transaction or litigation. But because of the participation in the “beauty contest,” the entire law firm in this nightmare scenario would usually be conflicted out of representing the other side.

The “beauty contest” problem still exists today. In fact, companies have been known to interview all of the best law firms in town to prevent the other side from obtaining the desired legal representation. But the 21st-century version of the problem arises in the context of social networking sites and law firm Web sites.

The problem begins when a prospective client e-mails an attorney. If the attorney provides legal advice in response, the nightmare scenario can be triggered and the entire law firm could be precluded from representing another party on the matter. Written disclaimers can help to reduce this problem. But as the District of Columbia Bar Legal Ethics Committee stated in its 2002 Opinion 316, “lawyers wishing to avoid formation of attorney-client relationships through chat room or similar Internet communications should limit themselves to providing legal information.” Providing legal advice, however, in the nature of recommendations “tailored to the unique facts of a particular person's circumstances” should be avoided.

'Loose Lips Sink Ships'

The business and ethical conflicts that can arise from blogging and social networking are bounded only by the limits of your imagination. Moreover, the larger the law firm, the more lips there are to jeopardize important client relationships and prospective business opportunities.

Assume that I use my law firm e-mail address in corresponding with various Web sites. If I were to criticize a firm client ' be it an oil company, an investment brokerage, or an automobile manufacturer ' on a public Web site, imagine the damage that could ensue if the actual or prospective client sees my firm e-mail address. Or if I were to take a position on a legal issue that was contrary to an important principle that an actual or prospective client maintained, my law firm might soon find itself with an upset former client or non-existent prospect. For example, a firm's tobacco client might not like it if an attorney stated publicly on a blog that tobacco companies are headed by bad people.

Ethics scholars could debate eloquently whether or not the hypotheticals set forth in the previous paragraph constitute an ethical conflict. Under Rule 1.7(a)(2) of the ABA Model Rules of Professional Conduct, for example, a conflict arises when representation of a client is “materially limited” by the “personal interest of the lawyer.” Moreover, under the principle of imputed conflicts, a conflict for one firm lawyer could result in the disqualification of the entire firm. Arguably, my hypotheticals constitute ethical conflicts, but probably not.

Law firm managing partners would not care at all about the scholarly debate. The risk of a business conflict, where clients fire their law firms or where prospective clients evaporate, would overshadow the technical arguments about ethical niceties.

So, do prudent managing partners impose policies against the personal use of firm e-mails to prevent these risks? In most circumstances, law firms would not be inclined to do so. In the first place, such policies would chill positive uses of firm e-mail addresses to develop business, and it would be very difficult to draw meaningful lines of distinction and to enforce such policies. Besides, e-mail use is just one aspect of the larger problem inherent in firm attorneys doing or saying things that upset clients.

For example, slightly change a hypothetical used earlier in this article. Assume that a firm attorney's picture is taken at a major league baseball game, and shows up in the local newspaper. If the attorney is wearing a firm baseball cap and a T-shirt criticizing the firm's oil company client, the potential problem will be as big as if the attorney criticized the oil company on the Internet using his firm e-mail address. If the client learns of the public criticism, whether in the newspaper or the Internet, the client may react negatively.

So what should the prudent law firm do to manage this risk? I believe that education and oversight are the keys to handling the problem of firm attorneys antagonizing firm clients and prospective opportunities. A centralized ethics committee or partner can teach lawyers, at all levels of seniority, the ways to avoid problems through the use of social networking and other methods of communication. That same committee or partner also can oversee firm processes and answer questions from attorneys to minimize the risk.

Conclusion

Today, social networking and blogging provide the latest manifestation of the problems discussed in this article. Tomorrow, a new and improved form of technology undoubtedly will cause the issue to arise. By applying the tried and true methods of the past, primarily, common sense, education and oversight, the prudent law firm will stay ahead of the curve and out of trouble.

Jeffrey P. Ayres, a member of this newsletter's Board of Editors, is a partner at Venable LLP. For many years, Mr. Ayres has chaired Venable's Ethics Committee. He regularly advises management (including law firms) on ethics and employment issues, and can be reached at jpayres@venable.com.

Who remembers the practice of law before e-mail and computers? I do. In those “good old days,” bar association activities, law clubs, and Martindale-Hubbell were about as adventurous as many attorneys would become when it came to social networking. Today, sites like Facebook and LinkedIn are used by lawyers of all ages, and not merely for socializing purposes.

From an ethics perspective, social networking activities raise cutting-edge issues that are beginning to be addressed with more frequency by courts and bar counsel. From a law firm perspective, as the ethical parameters of these activities become clearer, decision-makers will be in a better position to craft policies and to develop training programs to ensure that firm attorneys and other personnel comport with applicable rules of professional conduct. In this article, I discuss some of the more important ethical developments that are occurring in this area below.

False or Misleading Communications and Lawyer Advertising

No one should be shocked to learn that false or misleading statements on a social networking site or blog are often likely to be deemed unethical. Surprisingly, though, even truthful statements on Facebook have led to negative repercussions for at least one attorney in Texas. That attorney requested a continuance because her father had supposedly died. But the trial judge went online to Facebook and discovered that the attorney, in fact, had spent the time drinking and partying. Apparently, the attorney quickly “defriended” the judge immediately after the discrepancy was brought to the attorney's attention.

Another example of truthful statements on Facebook creating ethical issues arose recently in Florida. There, the State Judicial Ethics Advisory Committee has opined that judges cannot “friend” attorneys who practice before them, because it creates the appearance of undue influence.

Moreover, online statements by clients regarding an attorney's legal abilities can run afoul of a state's advertising ethics rules. A good example is South Carolina Ethics Advisory Opinion 09-10 (2009). There, a Web site generated an attorney profile without input from the lawyer himself. But the lawyer had the ability to “claim” the profile and make changes to it. Because of that ability, the South Carolina Committee indicated that the lawyer was ethically responsible for the profile, including subsequent amendments by third parties. Like many jurisdictions, South Carolina closely regulates client comments, testimonials and endorsements. Therefore, stated the Committee, “a lawyer should monitor a 'claimed' listing to keep all comments in conformity with the Rules. If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.”

Some commentators have observed that the South Carolina opinion places an unfair burden upon attorneys, who may not be aware of subsequent amendments to their profile by third parties and who may not be able to discontinue participation in the service. It will be interesting to see if other jurisdictions follow the approach of this South Carolina opinion.

Another advertising ethics issue is raised by sites like LinkedIn, which includes a section on “specialties.” Some jurisdictions have ethical requirements like Maryland Rule 7.4(a), which provides that “[a] lawyer shall not hold himself or herself out publicly as a specialist.” Attorneys in such jurisdictions will likely face grievance proceedings if they try to make use of such sections on Web sites like LinkedIn.

Breach of Confidentiality

A bedrock principle of attorney-client relationships is that, absent informed consent, lawyers must not disclose the secrets and confidences of their clients. Indeed, ABA Model Rule 1.6 goes even further and requires that all information relating to a representation, whether “secret” or not, must be kept confidential by the attorney unless the client dictates otherwise. These precepts apply as much to Twitter, Facebook, and blogs, as to any other form of communication.

Consider the Illinois assistant public defender who recently lost her job and is being recommended for disbarment by state disciplinary authorities. This attorney regularly discussed her cases on her blog in a manner pursuant to which her client could be identified. For example, she referred to a client named “Dennis” who appeared in court on a specific date. She blogged that her client came to court “stoned [on cocaine], right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn't being managed well.” Granted, the former assistant public defender's case wasn't helped by derogatory references to judges on her blog. She apparently referred to one as “a total a**hole” and another as “Judge Clueless.” But even apart from these unfortunate statements about judges, this Illinois proceeding demonstrates how careful lawyers must be before blogging about their clients.

Misrepresentations to a Non-Lawyer

Social networking sites can be a great source of information for litigators attempting to dig up dirt on the other side. But there are ethical lines that cannot be crossed to obtain that information. In a recent case arising in Pennsylvania, the Philadelphia Bar Association concluded in an ethics opinion that a lawyer could not hire someone to log onto Facebook and ask to be an opponent's “friend” in order to gain access to the opponent's information. Such a scheme, the opinion reasoned, violated Rule 8.4(c) (prohibiting attorney deception and misrepresentation) and 8.4(a) (forbidding attorneys form using agents to violate ethical principles) of the Pennsylvania Rules of Professional Conduct.

Whether this Philadelphia opinion will be followed in Pennsylvania or elsewhere remains to be seen. To me, hiring someone to “friend” an opponent on Facebook seems comparable to hiring someone to purchase items in a store that violate the client's patent. The latter is ethical in many if not all jurisdictions, and perhaps the Facebook “friend” will ultimately be exonerated as well.

Conflicts of Interest Through the Inadvertent Creation of an Attorney-Client Relationship

Years ago, law firms used to worry a lot about participating in “beauty contests” with potential clients. The nightmare scenario would go something like this. A company comes to town and interviews several law firms regarding potential representation. The company supplies some confidential information to the interviewees, who then tell the company ideas as to how they would handle the representation. The company then retains one firm. An unsuccessful interviewee is later contacted by the other side in the transaction or litigation. But because of the participation in the “beauty contest,” the entire law firm in this nightmare scenario would usually be conflicted out of representing the other side.

The “beauty contest” problem still exists today. In fact, companies have been known to interview all of the best law firms in town to prevent the other side from obtaining the desired legal representation. But the 21st-century version of the problem arises in the context of social networking sites and law firm Web sites.

The problem begins when a prospective client e-mails an attorney. If the attorney provides legal advice in response, the nightmare scenario can be triggered and the entire law firm could be precluded from representing another party on the matter. Written disclaimers can help to reduce this problem. But as the District of Columbia Bar Legal Ethics Committee stated in its 2002 Opinion 316, “lawyers wishing to avoid formation of attorney-client relationships through chat room or similar Internet communications should limit themselves to providing legal information.” Providing legal advice, however, in the nature of recommendations “tailored to the unique facts of a particular person's circumstances” should be avoided.

'Loose Lips Sink Ships'

The business and ethical conflicts that can arise from blogging and social networking are bounded only by the limits of your imagination. Moreover, the larger the law firm, the more lips there are to jeopardize important client relationships and prospective business opportunities.

Assume that I use my law firm e-mail address in corresponding with various Web sites. If I were to criticize a firm client ' be it an oil company, an investment brokerage, or an automobile manufacturer ' on a public Web site, imagine the damage that could ensue if the actual or prospective client sees my firm e-mail address. Or if I were to take a position on a legal issue that was contrary to an important principle that an actual or prospective client maintained, my law firm might soon find itself with an upset former client or non-existent prospect. For example, a firm's tobacco client might not like it if an attorney stated publicly on a blog that tobacco companies are headed by bad people.

Ethics scholars could debate eloquently whether or not the hypotheticals set forth in the previous paragraph constitute an ethical conflict. Under Rule 1.7(a)(2) of the ABA Model Rules of Professional Conduct, for example, a conflict arises when representation of a client is “materially limited” by the “personal interest of the lawyer.” Moreover, under the principle of imputed conflicts, a conflict for one firm lawyer could result in the disqualification of the entire firm. Arguably, my hypotheticals constitute ethical conflicts, but probably not.

Law firm managing partners would not care at all about the scholarly debate. The risk of a business conflict, where clients fire their law firms or where prospective clients evaporate, would overshadow the technical arguments about ethical niceties.

So, do prudent managing partners impose policies against the personal use of firm e-mails to prevent these risks? In most circumstances, law firms would not be inclined to do so. In the first place, such policies would chill positive uses of firm e-mail addresses to develop business, and it would be very difficult to draw meaningful lines of distinction and to enforce such policies. Besides, e-mail use is just one aspect of the larger problem inherent in firm attorneys doing or saying things that upset clients.

For example, slightly change a hypothetical used earlier in this article. Assume that a firm attorney's picture is taken at a major league baseball game, and shows up in the local newspaper. If the attorney is wearing a firm baseball cap and a T-shirt criticizing the firm's oil company client, the potential problem will be as big as if the attorney criticized the oil company on the Internet using his firm e-mail address. If the client learns of the public criticism, whether in the newspaper or the Internet, the client may react negatively.

So what should the prudent law firm do to manage this risk? I believe that education and oversight are the keys to handling the problem of firm attorneys antagonizing firm clients and prospective opportunities. A centralized ethics committee or partner can teach lawyers, at all levels of seniority, the ways to avoid problems through the use of social networking and other methods of communication. That same committee or partner also can oversee firm processes and answer questions from attorneys to minimize the risk.

Conclusion

Today, social networking and blogging provide the latest manifestation of the problems discussed in this article. Tomorrow, a new and improved form of technology undoubtedly will cause the issue to arise. By applying the tried and true methods of the past, primarily, common sense, education and oversight, the prudent law firm will stay ahead of the curve and out of trouble.

Jeffrey P. Ayres, a member of this newsletter's Board of Editors, is a partner at Venable LLP. For many years, Mr. Ayres has chaired Venable's Ethics Committee. He regularly advises management (including law firms) on ethics and employment issues, and can be reached at jpayres@venable.com.