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Quandaries and Quagmires: Lawyers, judges, ethics and social media

By William Wernz posted 12-10-2018 09:43 AM

  

Tweet rants, Facebook controversies, and alleged e-mail crimes dominate the daily news. Electronic social media also create ethics issues for lawyers and judges. Some issues are variations on old themes, but other issues arise from social media’s special traits. For example, social media provide public platforms for marketing, for attacks on lawyers and for spreading the news. Social media culture is spontaneous, casual and often irreverent. Posts are readily sent and re-sent and have a long after-life. Social media users may have hidden agendas or identities.

Competence is a threshold issue for social media ethics. A lawyer must keep “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. …” (Rule 1.1 cmt. 4, Minn. R. Prof. Conduct ((MRPC)). Competence may require learning permissible methods of obtaining information about persons and entities involved in trials and deals, as well as counseling clients about their own social media practices.

Competence requires a lawyer to protect confidential information in whatever medium it is stored or transmitted.

Confidentiality issues are frequently important with social media. Lawyer-bloggers are not permitted to disclose confidential information. Simply omitting names from war stories may be insufficient. A lawyer was suspended for providing a blogger with information from which there was a “reasonable likelihood” that a sexual abuse victim could be identified. (Rule 1.6 cmt. 4. In re Elbert, 861 N.W.2d 679((Minn. 2015)).

However, an ABA opinion has gone too far, by forbidding further dissemination of even generally known information in public files. Minnesota permits disclosure of non-privileged client information that is not likely to be detrimental or embarrassing to the client. (For a critical discussion of ABA Formal Opinion 480, see William J. Wernz, Quandaries and Quagmires, Client Confidentiality: ABA Formal Op. 480, Minn. Law., July 26, 2018. Rule 1.6 (b)(2), MRPC.)

On Jan. 15, 2019, the Minnesota Supreme Court will hear the petition of the Minnesota State Bar Association to amend Rule 1.6(b)(8). The amendment would permit lawyers to disclose confidential client information as necessary to respond to accusations by clients only in very limited circumstances — where the client has publicly accused the lawyer of serious misconduct and the client also has purported to reveal confidential information. (The Court will also consider the MSBA’s petition to amend Rule 5.5, to expand the circumstances in which non-Minnesota lawyers may temporarily practice in Minnesota. The petitions and related filings are in Supreme Court File No. ADM 10-8005.) The MSBA filed the petition because the current self-defense rule is ambiguous and lawyers need guidance on dealing with social media attacks.

Courts have applied rules on lawyers’ public statements to social media. A lawyer involved in litigation may not make public statements that are apt to prejudice a pending criminal jury trial. A prosecutor was disciplined for blogging “derogatory” statements about unnamed defendants, even though the discipline petition did not allege the statements were prejudicial. Another prosecutor, whose press conference was disseminated via YouTube, made statements about a defendant that were found inadvisable but not prejudicial. (Rule 3.6, MRPC. In re Scannell, 861 N.W.2d 678 ((Minn. 2015))). William J. Wernz, Quandaries and Quagmires: Discipline for Prosecutor’s ‘Derogatory’ Statements, Minn. Law., Feb. 4, 2016; State v. Parker, 901 N.W.2d 917 ((Minn. 2017))).

It is often said that “Revenge is a dish best served cold.” However, social media users often act in the heat of the moment. One lawyer sought revenge against adverse counsel by posting a negative, fake client review on a ratings website. Another lawyer got back at the law firm that fired him with a two-pronged counterattack — posting on the firm’s website  that the firm’s owner had been involuntarily committed and routing the firm’s emails to himself. Even when revenge is not an issue, deception must be avoided. A judge who was removed from office as a discipline informed his blog readers that he was taking “early retirement” ahead of schedule. All three lawyers were disciplined. (In re Carlson, 833 N.W.2d 402 ((Minn. 2013)). ((Public reprimand)); Florida Bar v. Green, File SC18-1004, Sept. 20,2018 ((suspension)); In re Pendleton, 876 N.W.2d 296 ((Minn. 2016)). 

Marketing via websites and social media has become very common. The Office of Lawyers Professional Responsibility takes the position that client consent is required for identifying clients and client matters on a law firm website. (Cassie B. Hanson, Making Sure Your Firm’s Website Complies With the Rules, Minn. Law., Sept. 3, 2007, at 11.)

This position ignores the special permission in Minnesota for disclosing harmless information. However, a lawyer should think twice before trumpeting victories. For example, the news  that a lawyer has successfully defended ten employment suits against client X may be embarrassing for X because of the news that employees often sue X.

Bar ethics opinions have attempted to define when LinkedIn and other commercially used social media are subject to lawyer ethics rules on advertising and solicitation. Rule 7.1(a), the bedrock rule, applies broadly, without requiring that a “communication” be an “advertisement”: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” However, other rules impose special requirements on solicitations and advertisements. In general, information about a lawyer, without mention of availability, especially on a particular matter, will likely be regarded as a mere communication.

The dangerous spontaneity and ease of using social media are on display in two judicial discipline cases. (In re Almase (Nevada Jud. Comm. 2018); In re Bearse (Minn. Bd. Jud. Stds. 2015).

In one case, a Nevada judge delegated great responsibility to the manager of her re-election campaign. The manager had the bright idea of a photo-shopped Facebook post, showing the actor “The Rock” arm-in-arm with the judge, apparently endorsing her. The manager told  the judge, falsely, she had the Rock’s oral permission. The judge was publicly disciplined for failing to reasonably supervise the manager.

In another case, a Minnesota judge posted on Facebook in near stream-of-consciousness fashion his perceptions during trial. The judge wrote: I just love doing the stress of jury trials. In a Felony trial now State prosecuting a pimp. Cases are always difficult because the women (as in this case also) will not cooperate.” The judge thought his posts were available only to a small group he knew but in fact they were available to the public. The trial lawyers became aware of the Facebook post, a motion was made, and a substitute judge ordered a new trial.

Litigators face Facebook and social media ethics questions. May a lawyer access information on the Facebook page of a juror, an adverse party, or a witness? It depends on whether the information is publicly available. If the lawyer, or the lawyer’s investigator, poses as a “friend,” the posing may be found to involve deceit. Deceitful investigative techniques were subject to discipline before social media was invented and they remain so. If the investigation target is represented by counsel, the investigating lawyer may also violate the rule against ex parte contacts with represented parties. (Craig D. Klausing, It’s the Steak, Not the Sizzle That Counts, Minn. Law., Dec. 7, 2009; William J. Wernz, Summary of Admonitions, Bench & B. of Minn., Feb. 1991.)

Judicial ethics and litigation issues intersect when a judge has a social media relationship   with a party, or a trial lawyer, or a witness. Knowing of the relationship, would an objective, unbiased layperson, “with full knowledge of the facts and circumstances, question the   judge’s impartiality?” (Rule 2.11, Code of Judicial Conduct. See In re Jacobs, 802 N.W.2d 748 ((Minn. 2011)); State v. Pratt, 813 N.W.2d 868 ((Minn. 2012))). Most authorities have concluded that a Facebook “friend” relationship between a lawyer in a trial and a judge does not, by itself, create a basis for reasonably questioning the judge’s impartiality. But lawyers should remember that they are subject to discipline for assisting a judge in violating the judicial code and for implying an ability to improperly influence a judge. (ABA Formal Opinion 462 ((2013)); Patrick R. Burns, Rules of Engagement: Judges and ESM, Minn. Law., June 3, 2013; Rules 8.4(e) and (f), MRPC.)

When we debate facts with friends, we often settle the debate via Google and other internet sources. Judges may not independently investigate the facts in a case before them, but they may take judicial notice of certain facts. Where to draw the line may not always be obvious, but when judicial notice is taken the judge notifies the parties and the parties may contest the judicial notice.

Various technological developments in recent decades have affected legal and judicial ethics. Lawyers and judges must, to a reasonable degree, keep abreast. By affecting our culture  and modes of communication, social media reshapes many questions of legal and judicial ethics.

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