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Facebook and Legal Ethics: Be Careful Out There

By Brett Weiss, Maryland Bankruptcy Attorney

While the use of social media offers great opportunities in networking and client development for lawyers, a recent article in the American Bar Association Journal highlights some of the potential pitfalls. Seduced: For Lawyers the Appeal of Social Media is Obvious. It’s Also Dangerous, is an excellent article discussing the new ethical landscape created by on-line and social media networks. It highlights several lawyers who ran afoul of ethical requirements as a result of Facebook and blog posts, and discuss what went wrong. A few horror stories:

• Florida criminal attorney Sean W. Conway made derogatory comments on JAABlog about a judge whom he believed was pressuring defendants into waiving their speedy trial rights. The result? A public reprimand and fine from the Florida Supreme Court.
• North Carolina judge B. Carlton Terry Jr. was publicly reprimanded by the state’s Judicial Standards Commission because he became a Facebook friend of an attorney appearing in a case before him, and exchanged several comments about the case.
• Kristine A. Peshek was an assistant public defender in Illinois was fired and charged with ethical violations for blogging about cases she worked on and allegedly revealing privileged client information.

Is friending an opposing party represented by counsel to see their Facebook page a violation of ethics? According to Oregon State Bar Opinion No. 2001-164 (January 2001), it violates Model Rule 4.2. How about an unrepresented witnesses? If you try to friend the witness using a false name or information, this is a violation. But if you use your real name, it is not, at least in New York City. Committee on Professional and Judicial Ethics Opinion 2010-2 (September 2010). In Philadelphia, however, it is. Professional Guidance Committee Opinion 2009-02 (March 2009).

How about a judge friending an attorney who appears before him or her? In North Carolina, as noted above, and Florida, it’s improper. In Kentucky, New York and South Carolina, it’s fine, with some caveats. If there is a “close social relationship,” it must be disclosed or the judge must recuse him or herself.

Advertising is also a problem. Is a tweet about a favorable verdict an ad that needs to be approved (particularly where the state-required disclosure is longer than 140 characters)? How about an online chat where you talk about how many bankruptcy cases you have filed? In states where pre-approval of all legal advertising is required, this can cause significant problems. And what is a client posts a glowing review of your work on LinkedIn or Facebook? Under Rule 7.1, all the information posted about you must be correct under Rule 7.1. Does the review also need to comply with the Rule? According to the Ethics Advisory Committee of the South Carolina Bar, Ethics Advisory Opinion 09-10 (2009) and the Ohio Board of Com missioners on Grievances and Discipline No. 2000-6 (2000), the recommendation must not “create unjustified expectations or otherwise mislead a prospective client” or the attorney might be in violation of the Rule.

This is an excellent article that I strongly encourage all lawyers to study carefully.

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Full post as published by Credit Law Network on February 05, 2011 (boomark / email).