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IBA: Social Media and Ethics

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By James J. Bell and Patrick A. Ziepolt, Bingham McHale LLP

Once upon a time, a Florida judge had a practice of asking criminal defendants whether they were ready for trial a week after their arraignment. A Florida lawyer believed that the judge was attempting to force defendants to waive their right to a speedy trial. When complaints to the judicial watchdog agencies yielded no results, the Florida lawyer appealed to a higher authority: the blogosphere.

On a blog, the Florida lawyer posted that the judge was trying “to make defendants waive their right to a speedy trial.” See Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous, A.B.A. J., Feb. 2011. So far, no unethical statement had been made. While one could argue that this was not the best way to challenge a judge, this statement attacked the judge’s decision and did not attack the judge’s integrity in violation of Florida’s equivalent to Rule 8.2(a) of the Indiana Rules of Professional Conduct. However, when the lawyer posted that the judge was “an evil, unfair witch,” “seemingly mentally ill” and “clearly unfit for her position and knows not what it means to be a neutral arbiter,” he easily leapt over the 8.2(a) line and was sanctioned by the State of Florida. Id.

This Florida case should remind Indiana lawyers to be cognizant of the Rules of Professional Conduct when participating in any form of social media. If you are a lawyer who “tweets” like the owner of a certain local, professional football team or who feels the need to electronically express yourself, the following “Social Media Checklist” may be helpful to you:

1. Don’t reveal client confidences in social media. See Ind. Professional Conduct Rule 1.6. This seems obvious, but it is not uncommon for lawyers to post very specific details of their cases on listserves or “vent” about their clients in improper ways on Facebook.

2. Train/“supervise” staff and subordinate lawyers to follow the Rules of Professional Conduct while participating in social media. See Prof. Cond. R. 5.3. Rule 5.3 requires that attorneys with managerial authority make “reasonable efforts” to ensure that a subordinate’s conduct is “compatible” with the Rules of Professional Conduct. If confidences are revealed by a subordinate and a grievance is filed, your defense should include documentation that memorializes your training of the subordinate in the area of client confidences.

3. Don’t violate the advertising rules in social media. See Prof. Cond. R. 7.1-7.5. Remember that the Rules of Professional Conduct define “advertising” as “any manner of public communication . . . intended to promote… the use of professional services.” Bragging about yourself on a site like LinkedIn would come under this definition of “advertising.”

4. Don’t contact anyone represented by an attorney about the subject matter of the representation via social media. See Prof. Cond. R. 4.2. This rule likely prohibits a lawyer (or the lawyer’s assistant) from “friending” a represented party.

5. Don’t create a conflict of interest by establishing an attorney-client relationship with a prospective client who is adverse to a current client while on social media. See Prof. Cond. R. 1.7 and 1.18. Be wary of opining or advising about someone’s legal rights while online. Just because you don’t get paid for your advice doesn’t mean that you can’t be held responsible for it.

6. Don’t engage in ex parte communications with a judge about a pending case via social media. See Prof. Cond. R. 3.5. On that subject, think twice about becoming Facebook friends with a judge who is really a professional acquaintance. If you do have a judge “friend,” do not discuss pending cases over Facebook—and certainly don’t discuss pending cases during a trial (it’s happened).

7. Don’t make false statements to third parties on social media. See Prof. Cond. R. 4.1. See # 4, above. Some ethics opinions have held that lawyers who “friend” third-parties under false pretenses in order to read friends-only data are risking discipline.

8. Do not engage in conduct, in a “professional capacity,” that demonstrates bias or prejudice while via social media. See Prof. Cond. R. 8.4(g).

And finally, as we learned from the Florida lawyer,

9. Don’t slam the integrity of a judge on social media. See Prof. Cond. R. 8.2(a).

In order to avoid disciplinary pitfalls that stem from social media, attorneys need to remember that it is difficult to step out of their role as attorneys when they go to express themselves on the Internet. This is especially true if the attorney intends to talk about any aspect of his or her law practice. Social media is not private and it is easily forwarded, printed and preserved. Unfortunately, inappropriate “off the cuff” comments can quickly turn into a permanent, long-term nightmare for an attorney. Remembering the Rules of Professional Conduct while engaging in social media will help avoid such nightmares.•

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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