|Oregon State Bar Bulletin NOVEMBER 2009|
A Word of Caution
By Helen Hierschbiel
So far, I have not jumped on the social media bandwagon. While I do read blogs on occasion, I do not post comments, I do not tweet, I do not have a Facebook, MySpace, LinkedIn or other comparable account, and I only rarely text anyone, preferring instead to call in response to any text message I receive. I can’t say that I am proud of my ignorance of and detachment from these technological innovations. But when someone suggested several months ago that I write an article about the ethical traps involved in the use of social media, my eyes glazed over in incomprehension, and I ignored him.
Apparently, I am in the minority. In a 2009 survey conducted by Leader Networks for LexisNexis Martindale-Hubbell, approximately three-quarters of lawyers reported that they are members of a social network such as MySpace, Facebook or LinkedIn. Over a third of lawyers surveyed read and comment on articles, blogs and other online content. Of those engaged in these online social networking activities, three-quarters do so on at least a weekly basis. Lawyers surveyed cited two main reasons for their participation: to more easily exchange information and experience between peers, and to increase visibility among peers. While lawyers are still on the fence about the real value of social media, they do believe that online networking will change the business and practice of law over the next five years.1
Recently, while in search of a bar counsel column topic more suited to my temperament and expertise, I ran across several lawyer blogs and other online forums that were all a’twitter (pun intended) over a New York Times article regarding lawyer missteps when engaging in online discourse.2 The article began with the story of a Florida lawyer who posted on JAABlog several unsavory comments about a judge, including that she was an “evil, unfair witch.”3 The article went on to highlight several other accounts of lawyers whose use of social media also got them into serious trouble.
So it seems that a column about how social media and the rules of professional conduct can collide might be timely and helpful after all. This column does not purport to explain how to use social media to market or otherwise improve your law practice. Instead, it is intended to remind lawyers as they are frantically blogging, tweeting and posting, to slow down, take a breath before they hit ENTER, and remember that their words will be eternal, public, and could form the basis for disciplinary sanction against them.
Revealing Client Confidences
Perhaps the most obvious danger for lawyers who blog, chat or twitter about their law practices is the unwitting disclosure of client confidences. Oregon RPC 1.6 prohibits lawyers from revealing information relating to the representation of a client unless the client consents, the disclosure is impliedly authorized to carry out the representation, or disclosure is otherwise permitted under RPC 1.6(b). The collegiality and apparent anonymity of listserves, blogs and other online forums can lull lawyers into a dangerously false sense of security when it comes to protecting client confidences. An Illinois lawyer is currently facing disciplinary charges for posting comments to her blog that referred to one jurist as “Judge Clueless” and otherwise failed to protect the identities of her clients and confidential details of the case.4 Lest you think that only Illinois lawyers would do such a thing, a lawyer in Oregon stipulated to a 90-day suspension for posting a message on a listserve in which she disclosed a former client’s confidential personal and medical information and otherwise portrayed the former client in an unflattering light. In re Qullinan, 20 DB Rptr 288 (2006).
Another risk for lawyers who participate in online social networks is communicating with persons about subject matters that are off-limits. For example, Oregon RPC 3.5 prohibits lawyers from engaging in ex parte communications with judges on the merits of a pending proceeding. Recently in North Carolina, a judge was reprimanded for communicating ex parte with a lawyer regarding a pending trial in which the lawyer was representing one of the parties. The communications in that case took place on their
Lawyers are also prohibited from communicating with a person who they know is represented on the subject of the representation. Oregon RPC 4.2. Addressing contact with represented parties through the Internet, OSB Formal Op No 2005-164 says that visiting a public website is fine, but interacting with that website can be problematic. If the lawyer knows that the person with whom she is communicating online is represented, then the communication would be prohibited by RPC 4.2.
Lawyers should not only be cautious about what they themselves are contributing online, but should also be aware of their clients’ Internet activities. In his September 2009 BullsEye expert witness e-newsletter article, “When What Happens Online Ends Up in Court,”6 Robert J. Ambrogi tells of a doctor who decided to blog, under the pseudonym “Flea,” about his own medical malpractice trial. Throughout the trial, he posted his impressions of the plaintiffs’ lawyer, the preparations for his testimony, and his thoughts about the jurors. On cross-examination of the doctor, plaintiffs’ lawyer asked whether he was “Flea.” Given some of the choice comments the doctor had posted, it’s not surprising that a settlement was reached the next day.
The flipside of lawyers needing to be careful about what they and their clients post on the Internet, is needing to be cognizant of the abundance of information available online about others. In fact, some might argue that competent representation these days requires investigation of any Internet presence or personae for parties and witnesses. That is an open question that has yet to be addressed by any court of which I am aware.
Hiding the Ball
While investigating witnesses and adverse parties, is it all right to use deception? This was the question posed to the Philadelphia Bar Association in Opinion 2009-02 (March 2009). The inquirer sought to access a witness’s MySpace and Facebook pages by asking a third person, someone whom the witness would not know or recognize, to go to the website and seek to “friend” the witness in order to obtain access to the witness’s personal pages. The third person would provide truthful information, but would not reveal her affiliation with the lawyer or the purpose for which she sought access to the witness’s personal pages. The Philadelphia opinion determined that such conduct clearly would be deceptive and therefore not allowed under its rules of professional conduct. If lawyers want access to personal social network sites, they need to ask for access directly.
The answer to the inquirer’s question could be different in Oregon, depending on the exact purpose of the lawyer’s efforts to access the information. Oregon RPC 8.4(a) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and from doing so through the acts of others. However, RPC 8.4(b) says that notwithstanding RPC 8.4(a), it is not misconduct
for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights… Covert activity may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.
OSB Formal Op No 2005-173 makes clear that covert activity is not allowed under RPC 8.4(b) when there are no “violations of civil law, criminal law, or constitutional rights” to investigate, and that lawyers may not participate directly in the covert activity.
In any event, lawyers should take care not to engage in deception online themselves. An Oregon lawyer learned this lesson the hard way when he created an Internet bulletin board account in the name of a high school teacher and posted a message purportedly written by the teacher, implying that the teacher had engaged in sexual relations with his students. Although the lawyer intended the ruse to be a practical joke, the lawyer ultimately was reprimanded for violating former DR 1-102(A)(3)(now RPC 8.4(a)(3)). See In re Carpenter, 337 Or 226 (2004).
The rules of professional conduct do not apply any differently in the social media context; however, they do still apply. And the informality and ease of use of social media can lull lawyers into acting without thinking, without flexing their judgment muscles, and without considering whether their comments might run afoul of their professional obligations. So, when partaking in the benefits of social media, lawyers should be mindful of the lesson learned by our most recent United States Supreme Court Justice Sonia Sotomayer: Internet postings are public, easy to access and eternal.
1. See 2009 Networks for Counsel Study, a complete copy of which can be found online at www.leadernetworks.com/documents/Networks_for_Counsel_2009.pdf.
2. Schwartz, “A Legal Battle: Online Attitude vs. Rules of the bar,” New York Times, Sept. 13, 2009.
3. The lawyer ultimately stipulated to being reprimanded and fined for his commentsFla. Bar v. Conway, 996 So2d 213 (2008).
4. In the Matter of Peshek, Ill. Atty.Reg. and Disc. Comm., No. 09 CH 89 (Aug. 25, 2009).
5. In re: Terry, N.C. Judicial Stds Comm., Inq. No. 08-234 (Apr. 1, 2009).
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at email@example.com
© 2009 Helen Hierschbiel