Tweeting, Blogging Lawyers Warned About Positional Conflicts

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By Samson Habte

Nov. 10 — Lawyers who blog or tweet about legal developments should be cautious “when stating positions on issues” because “those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict,” the District of Columbia bar’s ethics committee advised in November.

The guidance came in one of two simultaneously issued opinions that discuss a host of ethical issues involving lawyers’ use of social media (D.C. Bar Legal Ethics Comm., Ops. 370 and 371, 11/16).

The opinions—which respectively address the use of social media for “marketing and personal” purposes and “ in the substantive practice of law”—cover a range of topics that have drawn attention from bar panels across the nation.

Ethics opinions on attorneys’ social media usage have piled up in recent years, and the D.C. committee borrowed from the analyses of at least 19 other bar panels on a number of issues—including whether lawyers have an ethical duty to monitor a client’s social media postings, or to investigate the online activities of adversaries, jurors and judges.

But the D.C. panel also highlighted a few risks that were not emphasized in prior ethics opinions.

One apparently novel warning was on the risks of creating so-called “positional” conflicts when blogging or tweeting about legal developments. These are conflicts that can arise when a lawyer advances one position but needs to argue the opposite on a client’s behalf.

The D.C. opinions also appear to be the first bar advisories to warn lawyers about the practical dangers of allowing social networking websites like LinkedIn to access their e-mail contact lists.

Transactional and Regulatory Practice

Most ethics opinions on attorney social media usage have focused on risks unique to litigators, who increasingly must wrestle with what one bar panel recently described as “the growing volume of litigation regarding social media discovery.” New York County Ethics Op. 745, 29 Law. Man. Prof. Conduct 438 (2013).

The D.C. panel addressed a number of litigation-related issues, urging lawyers to expressly include social media evidence in discovery requests and to not overlook such evidence in discovery responses.

But the panel also acknowledged “potential issues in transactional and regulatory practices, which are infrequently discussed,” said Jan L. Jacobowitz, who teaches legal ethics at the University of Miami School of Law.

The panel said social media evidence may be relevant to a “broad array of transactional and advisory practices, including regulatory work.”

Transactional lawyers should “includ[e] social media in due diligence requests” and review “client social media for their consistency with representations, warranties, covenants, conditions, restrictions, and other terms or proposed terms of agreements,” the panel said. That could be important “because inconsistency could create rights or remedies for counterparties,” the panel said.

And regulatory lawyers may have to advise clients on “whether social media postings or use violate statutory or rule-based limits on public statements or marketing,” which several federal and state agencies have promulgated, the panel noted.

“Communications about initial public offerings pose regulatory risk, and those risks apply fully to issuer social media,” the panel said, citing Securities and Exchange Commission rules. And “[i]nadequately disclosed interactive internet downloads may constitute unfair or deceptive acts or practices,” the panel said, citing Federal Trade Commission guidelines.

Blogging Dangerously

The panel warned that lawyers who blog or tweet about legal developments may run into ethical problems if they state positions on legal issues that conflict with positions they have advanced, or may be called on to advance, on a client’s behalf.

The committee said lawyers who engage in online musings of this sort may inadvertently create a positional conflict under D.C. Rule of Professional Conduct 1.7(b)(4). That rule says a lawyer may not represent a client in a matter if “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by ... the lawyer’s own financial, property or personal interests.”

The committee didn’t devote any more attention to the risks of creating positional conflicts through online commentary, but a few legal ethics scholars and professional responsibility lawyers have discussed this issue in law review articles and CLE presentations.

University of Tennessee law professor Judy M. Cornett has said the “definition of positional conflicts is limited to positions taken ‘in different tribunals,’” and thus “would seem to be inapplicable to positions taken” on legal blogs (“blawgs”) or social media sites.

“However, it is conceivable that positions taken by a blawger may create a conflict if she subsequently takes a position contrary to her previously stated position,” Cornett wrote in The Ethics of Blawging: A Genre Analysis, 41 Loy. U. Chi. L. J. 221, 259 (2009).

Accordingly, Cornett said, “If a blawger whose reputation is entwined with her blawg needs to take a contrary position in order to advance a client’s interests, she may be ‘materially limited’ from doing so because of that reputational interest.”

‘Public Relations Issue,' Not ‘Hard Conflict.'

Jacobowitz told Bloomberg BNA that “an attorney expressing his views online regarding particular case decisions or current events is more likely to create a public relations issue than a hard conflict under the rules.”

“In other words, it is not inconceivable that a lawyer might lose a client or fail to attract a certain client, if that lawyer has a significant social media presence in which he is outspoken on issues that are contrary to a client's business interests,” said Jacobowitz, who is co-authoring a book on attorney social media usage with John G. Browning of Passman & Jones P.C. in Dallas.

Firm-Wide Social Media Policies

New York attorney Ronald C. Minkoff has advised law firms to adopt a “social media policy” with a provision that takes positional conflicts into account.

Minkoff, who heads the professional responsibility group at Frankfurt Kurnit Klein + Selz P.C., has provided CLE participants with a sample social media policy that includes the following language:

  • Avoid business conflicts. Please exercise discretion when opining about court decisions, regulatory changes, or other developments that affect our clients’ businesses, or that may be inconsistent with positions that the firm has taken on behalf of its clients.

LinkedIn Lesson

Bar panels have issued conflicting opinions on whether lawyers violate ethics rules that prohibit communications with jurors and judges when they browse profiles those individuals maintain on LinkedIn, which automatically alerts users that their profiles have been viewed. See Colorado Ethics Op. 127, 31 Law. Man. Prof. Conduct 698 (2015).

LinkedIn has also been the subject of opinions that deal with prohibited claims of expertise. See, e.g., New York County Ethics Op. 748, 31 Law. Man. Prof. Conduct 156 (2015).

The D.C. panel addressed those topics but also highlighted another—LinkedIn's “ Imported Contacts” feature—that hasn't received attention in past opinions.

That feature enables LinkedIn to gain access to a user’s e-mail address book so that it can connect existing members and send messages that ask nonmembers to join the site and connect with an existing member.

The committee said this could be problematic for lawyers because their contact lists “frequently include clients, opposing counsel, judges and others whom it may be impermissible, inappropriate or potentially embarrassing to have as a connection on a social networking site.”

“The connection services provided by many social networks can be a good marketing and networking tool, but for attorneys, these connection services could potentially identify clients or divulge other information that a lawyer might not want an adversary or a member of the judiciary to see or information that the lawyer is obligated to protect from disclosure,” the panel said.

Lawyers should thus exercise “great caution” when asked to grant a social media site access to their e-mail contacts, the committee said.

The committee’s ethics counsel, Hope C. Todd, told Bloomberg BNA that this “prudential guidance” was a “practical tip that came from understanding how the social networks access personal information and send emails ‘on your behalf.’”

Social Media Checklist

The committee also offered guidance on several topics that have been covered in prior ethics opinions. Among other things, it said:

  •  the duty of confidentiality may require a lawyer to seek “explicit informed client consent” before blogging about a case, and to share drafts of any proposed blog posts with the client;
  •  the so-called “self-defense” exception to the duty of confidentiality “does not provide complete safe harbor for the disclosure of client confidences in response to a negative internet review”;
  •  using “a prominent disclaimer” may help avoid the inadvertent formation of attorney-client relationships when discussing legal issues with internet users;
  •  the duty of competent representation may require lawyers to review client social media posts to ensure they are consistent with a client’s “claims, defenses, pleadings, filings or litigation/regulatory positions”;
  •  lawyers “may need to include social media in advice and instructions to clients about litigation holds, document preservation, and document collection”;
  •  lawyers may need to advise clients on whether “obstruction statutes, spoliation law and procedural rules” in a given jurisdiction permit them to “modify their social media presence once litigation or regulatory proceedings are anticipated”; and
  •  the duty of competent representation “may require investigation of potentially relevant social media postings” of adverse parties, opposing counsel, jurors and judicial or administrative “decision-makers.”

To contact the reporter on this story: Samson Habte in Washington, D.C. at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

For More Information

The ethics opinions can be found at http://www.dcbar.org/bar-resources/legal-ethics/opinions/.

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