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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.