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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. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  2. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  3. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  4. Why do so many lawyers get away with lying in court, Jamie Yoak?

  5. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

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