Taking Heat for a Tweet: Ethical Concerns with Lawyers Communicating on Social Media
The Bencher—November/December 2019
By John G. Browning, Esquire
In our increasingly wired world, over 82 percent of all adults in the United States maintain at least one social media profile. In a single minute, there will be over 366,000 tweets; 293,000 status updates on Facebook; and more than 400 hours of footage uploaded to YouTube. And in a single day, 95 million photos and videos will be shared on Instagram. With the ubiquitous nature of social media, it comes as no shock that being active on social media has taken on increasing significance for lawyers and law firms. According to the American Bar Association’s 2018 Legal Technology Survey, 79 percent of lawyers use social media for professional purposes, including case investigation and marketing their practices. But when it comes to using social networking platforms for communications—whether communicating with clients and litigants or about one’s clients and cases—the path is strewn with ethical pitfalls.
Consider, for example, Iowa criminal defense lawyer Chad Frese. In November 2018, Frese courted controversy when he referred in a Facebook post to a client he was defending on federal drug and gun charges as an “idiot” and a “terrible criminal” before adding, “You wonder why we need jails huh?” While he didn’t identify the client by name, Frese shared enough information that the man’s name could be determined through court records. Frese took the post down after expressing surprise that it had attracted so much attention. (He thought it was only shared with his Facebook friends.)
It’s not known publicly if Frese received any disciplinary action as a result of this. Iowa, like many jurisdictions, keeps the filing of such proceedings confidential. However, Iowa legal commentators pointed out that the posts violated the Iowa Rules of Professional Conduct, which mandates that lawyers are to refrain from discussing “the character, credibility, reputation, or criminal record” of any party and from offering opinions on innocence or guilt.
Indeed, because of the importance of keeping client communications confidential, it’s not only advisable to avoid referring to such communications on social media platforms, it’s wise not to engage in client communications on a forum such as Facebook in the first place. This lesson came a bit too late for Nebraska lawyer Dustin Garrison, who in April 2017 received a three-month suspension from the Nebraska Supreme Court for failing to properly communicate with a client. In response to his client’s numerous questions about a personal injury case, Garrison posted messages on Facebook that were terse, evasive, and even dismissive over a period of about five years. Those Facebook messages included statements such as:
- “We are fine.”
- “Be happy. We are in the driver’s seat.”
- “I’m busy right now.”
- “I will explain later.”
- “This is complicated.”
- “I can’t explain the whole process.”
While engaging with opposing parties on social media doesn’t pose the kind of confidentiality concerns that communicating with one’s clients does, it can still present ethical concerns. Lawyers have to understand that civility and professionalism are expected not just in the courtroom, or in traditional avenues of communication, but on social media platforms as well. On many occasions, a lack of civility can put a lawyer at risk of disciplinary action or even criminal charges. In In re Gamble in 2014, the Kansas Supreme Court imposed a six-month suspension on a lawyer for his “egregious” and “over the top” messages on Facebook to an unrepresented single mother while representing the baby’s biological father during an adoption proceeding. The court felt that the lawyer’s communications, trying to make the mother feel guilty about consenting to give up the child, violated both Rule 8.4(d) (conduct prejudicial to the justice system) and Rule 8.4(g) (conduct reflecting adversely on the lawyer’s fitness to practice).
Similarly, Indiana attorney James Hanson crossed the line when he wrote a Facebook post to the ex-husband of the client he was representing in both a divorce and a misdemeanor battery case in 2014. While the 41-year-old lawyer said he only intended to send a message that the ex should expect a vigorous defense, Hanson wrote, “You pissed off the wrong attorney.…I’m going to gather all the relevant evidence and then I’m going to anal rape you so hard your teeth come loose.…Watch your ass you little [expletive deleted]. I’ve got you in my sights now.” That online tirade not only resulted in a 30-day suspension for Hanson, it also led to criminal charges of felony intimidation (later reduced to misdemeanor charges).
Beyond the obvious dangers of going too far online when communicating with adverse parties, lawyers must be wary of what they say about their cases on social media, particularly just before or even during trial. In January 2018, a Philadelphia judge punished two lawyers who had represented the plaintiff in a December 2017 trial over the prescription blood thinner Xarelto. The two lawyers, Ned McWilliams of Pensacola, Florida, and Emily Jeffcott of New Orleans, had posted a number of photographs of the courtroom to Instagram with the hashtag “#killinnazis” (a reference to both the Quentin Tarantino movie “Inglourious Basterds” and German-based Bayer, the developer of Xarelto). Post-trial motions by the defense had argued that the plaintiff’s counsel’s social media posts were intended to create a link in the minds of the jurors between the German pharmaceutical company and Nazi Germany, calling it a “xenophobic” strategy. The court issued a judgment notwithstanding the verdict and set aside the $27.8 million verdict (on grounds unrelated to the social media posts). It also revoked the pro hac vice admission of McWilliams and sanctioned Jeffcott $2,500 and ordered her to perform 25 hours of community service. The judge noted that the Instagram posts in question and the #killinnazis hashtag (which Jeffcott’s firm subsequently used in promotional materials) were “well beneath the dignity of the legal profession.”
In July 2015, Des Moines, Iowa, trial lawyer Roxanne Conlin posted on Facebook just before the start of a July trial in which she represented a woman suing her former attorney for alleged false imprisonment. Besides publicly calling out that former attorney, Conlin’s post also criticized Iowa’s “all-white, all-male” Supreme Court for reducing that former attorney’s disciplinary penalty, saying the court “really needs a woman” and expressing hope that “a jury will be a little harder on him.” In response to an emergency motion by Conlin’s opposing counsel, and out of concern that the jury pool had been tainted by the Facebook comments, the trial judge delayed the trial until November.
And in Louisiana, two lawyers have actually been disbarred in recent years for discussing the details of pending cases online, as well as other troubling behavior. In late June 2015, the Louisiana Supreme Court disbarred then 52-year-old Joyce McCool for using Twitter and an online petition to engage in what it called a “social media blitz” against two judges presiding over child custody cases. Upset with these judges’ rulings, McCool had posted on social media what the court described as many “false, misleading, and inflammatory statements,” including accusing the judges in question of refusing to admit audio recordings of children talking about alleged abuse. McCool circulated an online petition calling for the judges’ removal and solicited others to make ex parte contact with the judges (and with the state Supreme Court) to express their feelings about these sealed domestic proceedings. On one day alone (August 16, 2011), McCool sent 30 tweets about the case and online petition, including ones that indicated an awareness of the potential consequences of her actions: “I am SO going 2 have 2 change jobs after this…! I’m risking sanctions by the LA supreme court; u could be a HUGE help.” In ordering McCool’s disbarment, the court found that the social media campaign she launched was “part of a pattern of conduct intended to influence the judges’ future rulings in pending litigation” and that her actions “threaten[ed] the independence and integrity of the judicial system, and caus[ed] the judges concern for their personal safety and well-being.”
And on December 5, 2018, the court ordered the disbarment of former federal prosecutor Salvador “Sal” Perricone for posting anonymous online comments about pending investigations and cases he or the U.S. Attorney’s Office was handling. The court found that Perricone’s “caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system” and said its decision “must send a strong message…to all members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the internet.” Between November 2007 and March 2012, using online pseudonyms like “Henry L. Mencken 1951,” Perricone had posted more than 2,600 comments at www.nola.com, which is the website of the New Orleans newspaper The Times-Picayune. The comments included references to a defense lawyer who had “screwed his client” in a case Perricone was prosecuting, as well as commentary about the prosecution of New Orleans police officers in the Danziger Bridge shootings of six civilians (saying of the officers involved that “NONE of these guys should have ever been given a badge”).
The American Bar Association (ABA) recently provided more guidance to lawyers on the subject of what can and cannot be said by lawyers communicating online about their cases or clients in the form of Formal Opinion 480, titled “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary,” issued on March 6, 2018. In a nutshell, this opinion imposes a heightened duty of confidentiality for lawyers who communicate publicly on the internet, holding that lawyers may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules. In other words, for lawyers considering commenting about their cases in blogs, Facebook posts, tweets, listservs, website news, videos, webinars, podcasts, and of course more traditional avenues of communication, the ABA views confidentiality as so fundamental to the lawyer-client relationship that it will apply even to information that may be publicly available and easily obtained.
Indeed, the foundation of this Formal Opinion is the Model Rule of Professional Conduct 1.6(a), which states that “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).” If you think this is a sweeping prohibition—with a scope arguably broader than the attorney-client privilege or the attorney-work product doctrine—you are correct. This covers everything related to the representation—not just information learned directly from the client but even details that are a matter of public record. As the opinion explains, “the duty of confidentiality extends generally to information related to a representation, whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.”
Accordingly, in the wake of Formal Opinion 480, lawyers need to be careful about violating Rule 1.6 when posting on social media about a case, without client consent, regardless of the nature and source of information. Moreover, as the opinion points out, a lawyer’s public commentary about a case may impact other Model Rules as well, including Model Rule 3.5 (Impartiality and Decorum of the Tribunal) and of course Rule 3.6 (Trial Publicity). The opinion acknowledges that new online platforms provide “a way to share knowledge, opinions, experiences, and news.” However, it is careful to point out that while “technological advances have altered how lawyers communicate, and therefore may raise unexpected practical questions, they do not alter lawyers’ fundamental ethical obligations when engaging in public commentary.”
John G. Browning, Esquire, is a partner in the Plano, Texas, office of Spencer Fane, where he handles a variety of civil litigation in state and federal courts. Browning is the author of several books and numerous articles on social media and the law. He is a member of the William ‘Mac’ Taylor American Inn of Court in Dallas.