May 30 --More and more attorneys are getting into hot water by misusing social media in their law practice, and several patterns of blunders are emerging, according to panelists who addressed this subject May 30 at the 40th ABA National Conference on Professional Responsibility.
The conference, held May 29-30 in Long Beach, Cal., was presented by the ABA Center for Professional Responsibility.
At a panel discussion on “Breaking Bad in the Digital Age: Ethical Concerns in Lawyers' Use of Emerging Technology,” speakers reviewed numerous high-profile cases in which lawyers got egg on their face--and in some cases, much worse--through naive or careless use of social media.
Panelist Nicole I. Hyland, of Frankfurt Kurnit Klein & Selz in New York, said she sees four primary traps for unwary lawyers in using social media:
• believing in “the myth of the privacy bubble”;
• forgetting ethics rules, laws and policies;
• misusing or not using social media as a discovery or investigatory tool; and
• failing to counsel clients on their social media use.
Hyland explains these ideas in more detail in“The Legal Ethics of Social Networking (Part I of II), MLRC MediaLawLetter May 2013, at 51, and“Avoiding the Ethical Pitfalls of Using Social Media” (December 2013) (PowerPoint slides).
John Browning compiled this “rogues' gallery” of lawyers who he said misbehaved via social media in the past few years:
▸A Brooklyn assistant district attorney is seen in blackface and holding a Confederate flag on his Facebook page.
▸An Indiana deputy assistant attorney general tweeted about using “live ammunition” on protesters.
▸An assistant U.S. attorney in Beaumont, Tex., posted about the “Dalibama” and Trayvon Martin case.
▸A Kansas Court of Appeals research attorney tweeted about a former Kansas attorney general's disciplinary hearing.
▸Multiple federal prosecutors in New Orleans admitted to posting pseudonymously about judges, pending investigations and cases.
▸A Norfolk, Va., assistant prosecutor posted threats against his boss on Facebook.
▸A Minnesota prosecutor commented on Facebook during an attempted murder trial about “keeping the streets safe from Somalis.”
▸An Illinois defense attorney uploaded discovery video of an undercover drug buy involving his client on YouTube, and described it as evidence of police planting drugs. Later, after viewing it more closely, he admitted that it incriminated his client.
▸An Illinois public defender posted sensitive and disparaging information on her blog about her cases and clients, even describing one jurist as “Judge Clueless.”
▸A former chief lead counsel to the Missouri governor posted nude photos of his ex-girlfriend--a prosecutor in Virginia--on Twitter.
According to Hyland, the “myth of the privacy bubble” is a big pitfall in using social media. “It's the idea we have when we're blogging or on our Facebook page that we're in this zone of privacy and things we say won't get out to the larger world,” she explained.
To illustrate her point, Hyland showed attendees a Facebook post that landed Florida public defender Anya Citron Stern in trouble in 2012. The post featured a photograph of her murder defendant client's leopard print underwear. After the post came to light, a motion for mistrial was granted, and Stern was fired from her job as a public defender.
“This is privacy bubble thinking,” Hyland said.
She urged lawyers to keep in mind what a New York judge said in a criminal case in refusing to quash a subpoena for information relating to the defendant's Twitter account: “There can be no reasonable expectation of privacy in a tweet sent around the world.” (People v. Harris, 2012 BL 163257, No. 2011NY080152 (N.Y. Crim. Ct. June 30, 2012)).
Hyland also showed attendees a humorous Venn diagram to drive home the public nature of the Internet. One circle in the diagram is labeled “the Internet,” and the other is labeled “privacy.” The circles don't intersect at all.
Forgetting the rules of practice is a second major pitfall, Hyland said. She described high-profile violations in several categories of ethics rules:
• Judicial criticism--A Florida lawyer agreed to a public reprimand in 2008 for harshly criticizing a judge in a blog post, using phrases such as “evil, unfair witch” and “seemingly mentally ill.” The Florida Supreme Court said the reprimand did not violate the lawyer's constitutional rights, Hyland said. (Fla. Bar v. Conway, 996 So. 2d 213 (Fla. Oct. 29, 2008) (order without published opinion).)
• Lawyer-client confidentiality--An Illinois criminal defense lawyer was suspended for 60 days and fired after 19 years with the public defender's office after she blogged about her cases. For example, she described one of her clients as stoned in court. (In re Peshek, No. M.R. 23794 (Ill. May 18, 2010)).
• Advertising rules--A South Carolina lawyer received a public reprimand in 2012 for violating advertising rules by false and misleading statements about his qualifications, such as listing 50 practice areas in which he had little or no experience. The court said the lawyer didn't adequately review the standards on lawyer advertising and instead relied on nonlawyers in a marketing firm to comply with the rules. (In re Dickey, 722 S.E.2d 522 (S.C. 2012)).
• Ex parte contacts--A judge was publicly reprimanded for communicating ex parte with a lawyer who was in trial before the judge. The lawyer said on Facebook: “I hope I'm in my last day of trial”; the judge answered “You are in your last day of trial.” (In re Terry, No. 08-234 (N.C. Judicial Standards Comm. April 1, 2009)).
“It's not just young, inexperienced people who make these mistakes,” Hyland said.
Hyland also said that “it's not just ethics rules” that lawyers must remember in using social media. Members of the bar also need to think about substantive law such as the law of defamation and copyright, and they must comply with each social media platform's terms of service, their employer's social media policy and “netiquette”--the do's and don'ts of online communication, she said.
John G. Browning of Lewis Brisbois Bisgaard & Smith LLP, Dallas, gave the audience examples of attorneys' misusing and not using social media for investigation and discovery.
Facebook has nearly 1.2 billion users, there are more than 400 million Twitter tweets every day and, every minute, there are 75 hours of video uploaded to YouTube, Browning said, adding “The sheer volume of this means there's a digital treasure trove for attorneys.”
Courts are recognizing the importance of social media as a discovery tool, Browning said, citing Johnson v. McCullough, 2010 BL 62487, 306 S.W.3d 551 (Mo. 2010) (affirmative duty to research jurors online), and Cannedy v. Adams, 2011 BL 339168, 706 F.3d 1148 (9th Cir. 2013) (failure to investigate social media recantation of sexual abuse victim held to be inadequate assistance of counsel).
Browning is the author of “It's Complicated: How to Walk the Fine Ethical Line in the Age of Social Media,” 76 Tex. B.J. 960 (2013); “Keep Your 'Friends' Close and Your Enemies Closer: Walking the Ethical Tightrope in the Use of Social Media,” 3 St. Mary's L.J. on Legal Malpractice & Ethics 204 (2013); The Social Media and Litigation Practice Guide (West 2014); and The Lawyer's Guide to Social Networking: Understanding Social Media's Impact on the Law (West 2010).
In using Facebook to gather information lawyers must not misrepresent who they are or act with deception, Browning said, citing Model Rules 4.1 (false statement of material fact or law to third person) and 8.4 (conduct involving dishonesty, fraud, deceit or misrepresentation), along with ethics opinions from bar associations in Philadelphia, New York City, New York State, and New Hampshire.
Describing a recent case of “false friending,” Browning said a prosecutor in Cleveland was fired in June 2013 for posing on Facebook as the fictional “baby mama” of a murder defendant in order to persuade two female alibi witnesses not to testify.
Also in Ohio, he said, a civil suit was filed in May 2012 against an insurance defense firm, along with a carrier and an investigator, over the investigator's alleged online impersonation to gain access to the private Facebook page of a minor plaintiff in a dog bite case.
Browning also said a pending disciplinary case in New Jersey alleges that lawyers directed their paralegal to friend a young male plaintiff in a personal injury case, even though he was represented by counsel, to gain access to the privacy-restricted portion of his website.
Lawyers don't get far in these types of scenarios, Browning said, by using the “caveman lawyer” defense--that is, “I don't understand this shiny box of noise and light, so I left it up to my paralegal.”
Browning also noted that lawyers may not unlawfully alter or destroy evidence and may not direct or assist others in doing so (Model Rule 3.4).
He pointed out that a Virginia lawyer triggered sanctions of $722,000 and had his license suspended for five years for telling a wrongful death client to “clean up” his Facebook page and then say in sworn interrogatories that he didn't have a Facebook account. See Allied Concrete Co. v. Lester, 2013 BL 8502, 736 S.E.2d 699 (Va. 2013).
That's a “cautionary tale from the digital age,” Browning said.
Lawyers need to be direct and active with clients about their social media activities, Browning said.
To illustrate this point, he discussed Gatto v. United Airlines, Inc., 2013 BL 80118, No. 2:10-cv-01090-ES-SCM (D.N.J. March 5, 2013), where a personal injury plaintiff deactivated his Facebook account during the middle of discovery, unbeknownst to his lawyer. The defendants' motion for spoliation sanctions was granted.
Browning also mentioned Patel v. Havana Bar, 2011 BL 304778, No. 10-1383 (E.D. Pa. Dec. 5, 2011), where spoliation was found after the plaintiff in a premises liability case solicited witnesses to change their stories via Facebook, then deleted the Facebook messages.
The moral of these cases, Browning said, is “know what your client is up to.”
Browning noted that according to a recent ABA ethics opinion, it is acceptable to research prospective jurors using social media. But the ABA opinion concluded--unlike some opinions from other bar groups--that no improper contact with jurors occurs merely because a particular social media network lets members know when other members view their information. See ABA Formal Ethics Op. 466, 30 Law. Man. Prof. Conduct 292 (2014).
Jurors may not like it when they learn that a lawyer is looking at their Internet presence, Browning pointed out. This came up, he said, in a high-profile mortgage fraud trial in New York federal court against Bank of America. A juror complained about a first-year associate on the defense team peeking at his LinkedIn profile; the judge in chambers said not to do it again, Browning stated.
Josh King, general counsel of lawyer-rating service Avvo in Seattle, offered attendees ideas, drawn from real-life examples, of how lawyers should not go about responding to a negative review.
Reviews about lawyers are steadily accelerating because clients value detailed information when looking for counsel, King said. And as these reviews grow, he said, “you run into the Internet hate machine” in which negative reviews are inevitable.
King said that even though lawyers naturally have an emotional reaction to a bad review about them, they should avoid negative responses such as filing a lawsuit.
For one thing, he pointed out, only the individual who actually makes the offensive statements can be sued--not the website where the statements appear--because a federal statute (47 U.S.C. §230(c)(1)) provides immunity from liability for Internet services that publish information provided by others.
Moreover, lawyers aren't the best judges of what statements about themselves are defamatory, King said. In jurisdictions such as Washington state that have a strong “anti-SLAPP” statute, a lawyer who sues a reviewer may well find that the case is immediately thrown out of court and the lawyer is on the hook for the opponent's attorneys' fees, he said.
Lawyers need to be wary of the “Streisand effect,” King said, referring to the enormous publicity generated when Barbara Streisand filed suit for invasion of privacy against a coastal ecology researcher who took a photo of her house.
“You need to be cautious and think whether you should let the thing you don't like sink back into the sludge of the Internet rather than make a stink about it,” King said.
King said it can be effective for a lawyer to comment on a negative review in the right way, expressing empathy and showing humanity.
But lawyers must be wary of exposing client confidences in violation of Rule 1.6 or airing embarrassing or detrimental information about the former client, King said. He pointed out that the Georgia Supreme Court recently reprimanded a lawyer for disclosing confidential information about a client in responding to the client's negative Internet reviews. See In re Skinner, 30 Law. Man. Prof. Conduct 373 (Ga. May 19, 2014).
Lawyers who choose to comment in response to a review also need to keep professionalism in mind and avoid being a jerk, he urged.
Recounting other ways in which lawyers are getting in trouble via new technology, King noted that according to a Brooklyn newspaper, a lawyer was suspended for creating a fake online profile. The lawyer apparently thought the fake profile was a funny joke, King said.
King also highlighted the phenomenon of “astroturfing,” or posting false negative or positive reviews. When a lawyer posted a false negative review of opposing counsel in a case, it was easy to find out who posted the review, and the lawyer lost her job, King said.
The online review site Yelp has sued a small San Diego law firm over alleged fake reviews, and the New York attorney general is going after people who create false positive reviews, King said.
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