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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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