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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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