When
I was in high school, social media consisted of my home telephone line. I could use it to access the outside world
until my parents told me to get off the phone because they were expecting an
important call. Today’s teens have many
more opportunities for social interaction without actual physical presence than
I did thanks to twenty-something developers of social media platforms who
became instant billionaires when their product that didn’t actually generate
any revenue got picked up by a big corporation afraid of missing out on the
next big thing. However, the funny
thing is that as social media has proliferated, its user base has gotten wider
and older. Parents who signed up for
Facebook to try to keep up with their teens activities (as if), discovered that
other parents were there trying to monitor their kid’s activities. When large numbers of persons in desirable
demographics started using social media, it created an opportunity for
advertisers, and as society embraced social media, lawyers eventually came
around to it.
For me, Facebook was my gateway to social
media. That led to blogging,
list-serves and Twitter (which I am still trying to figure out). For a child of the 70s like myself, social
media has the same DIY sensibility that punk did during my high school
years. (I never formed a band and
preferred the silliness of the Cars and the B-52s to the anger of the Sex
Pistols and the Clash, but that’s a story for another day).
The appeal of social media to lawyers is obvious. You can spend six months writing a law
review article that will come out a year later and be read by a few dozen
people or you can spend several hours writing a blog post that will get several
hundred views within the week. Since
most lawyers have some element of narcissism, social media appeals to that need. More importantly, as the internet has
proliferated, consumers are used to searching for information about products
and services online so that an internet presence can be a way to reach
potential clients for nothing more than the time it takes to write a blog.
However, with great opportunity comes great
danger. (I think Spiderman said
that). While social media can allow the
articulate attorney to convey his insights to more people than he could ever
corner at a cocktail party, it can also lead to run-ins with the bar,
defamation suits and unemployment. The
President has drawn heat for framing his foreign policy as “don’t do stupid
stuff.” However, when you boil it down,
the cornerstone of legal ethics is don’t do stupid stuff (as interpreted through
lots of rules). This article will talk
about how not to do stupid stuff with social media. While ethics is generally framed in the
negative, it can also point the way to our better natures, the professional
that we always hoped that we could be.
While I will not be giving lessons on how to be the Atticus Finch of the
digital age, I will pass on a few lessons I have learned from others on how to
effectively use social media.
I. Meet the New Media, Same as the Old
Media? Not Really.
Before getting into the dos and don’ts of social
media, it is worth spending a few paragraphs on just what social media is. Merriam Webster defines social media is:
forms
of electronic communication (as Web sites for social networking and
microblogging) through which users create online communities to share
information, ideas, personal messages, and other content (as videos).
However, social media is an
outgrowth of the new media. Before
talking about the ethical implications of social media, it is worthwhile to
take a look at how media has changed.
The old media was one directional.
Media was produced by professionals and directed to consumers. Old media consisted of print, television and
radio. It included such items as
newspapers, newsletters, legal journals, law reviews and legal
directories. Interactive “old” media
consisted of face to face contact in forums such as churches, Rotary Clubs,
Inns of Court and so on.
Lawyers used “old” media for at
least three overlapping purposes:
promotion, education and advocacy.
Promotion includes advertising, reputation development and
networking. Of these, advertising was
highly regulated by the bar and networking could only be done effectively
through face to face contact.
Traditional education activities consisted of writing for print media,
whether it was for a legal journal or an article for a continuing educational
conference. Advocacy was also limited by
the medium. Attorneys could take out an
advertisement on an important issue, whether it was on television or the
newspaper, or write a letter to the editor or write an amicus brief. Arguably, some aspects of old media were aimed
at personal narcissism. While
advertising is aimed primarily at soliciting clients, it can also be used to
feed the attorney’s personal ego.
Similarly, attorneys who could get on television as experts could
develop status beyond their ability to get clients. Old media was good for certain celebrity
attorneys such as Racehorse Haynes, F. Lee Bailey and Johnny Cochran.
New media consists of everything
made possible by the internet. On the
one hand, old media is now available on the internet. I can read the newspaper on my cell phone or
find a lawyer within seconds on the Texas State Bar website. There are vast amounts of free legal
resources online, such as the Cornell Law Library’s Legal Information Institute. However, what makes new media revolutionary
is both its low barrier to entry democratic structure and its capacity for
interactive communication. Anyone can
have a web presence and many of those platforms allow communication without the
restrictions of a telephone line or face to face interaction.
Examples of new media include:
- Blogs. Blog is a contraction of the term web
log. It is nothing more than a personal
website where a person can upload “posts” and allow comments. While blogs were once the subject of personal
ramblings of interest to no one other than the author, there are many good
legal blogs. Blogs are beginning to be
cited in judicial opinions. See, e.g., In re General Motors Corp.,
2009 Bankr. LEXIS 1687 (Bankr. S.D. N.Y. 2009); Chief Disciplinary Counsel v. Cohen, 2010 Conn. Super. LEXIS 3038
(Conn. Sup. 2010). My blog is A Texas
Bankruptcy Lawyers Blog. Blogs qualify
as new media because they are do-it-yourself media. Anyone who can access the internet can create
a blog. Blogs can have an interactive
feature through the comments section.
However, a blog requires a strong following to have a lively comments
section.
- List-serves. List-serves are a connected series of email
addresses allowing members to communicate with the group. It is easy to start a list-serve. I use a list-serve on Yahoo groups as a way
to promote my blog. It is common for
bar associations to have list-serves for communication between lawyers on legal
topics. Most legal list-serves have
closed membership (meaning that the moderator has to approve new members) and
are moderated to ensure that only appropriate communications make the list.
- Professional
networking and listing sites. These
include sites like Linked-In and Avvo which offer listings of professional
credentials. Linked-In is designed to
allow professionals to connect with each other, while Avvo is designed for the
general public. Avvo allows
professionals to submit credentials and obtain ratings.
- Twitter. Twitter is a service that allows members to
send messages of up to 140 characters.
While this may seem silly, the real value of Twitter is the ability to
link attachments to the mini-messages and the ability to follow interesting
people and hopefully have people follow your messages. I am just starting to use Twitter and use it
to promote my blog posts.
- Youtube. YouTube allows users to upload short
videos. YouTube videos can range from
cute cat videos to advertisements.
YouTube is also used by aspiring artists trying to be discovered.
- Facebook. Facebook allows a user to create and page
and post statuses and messages.
Facebook allows people to connect with “friends” who they may or may not
know in real life. I use Facebook to
get the latest pictures posted by my kids and to keep up with people who I may
have known in high school and college.
I have very few Facebook friends who I know form my professional world,
although I did friend the former Chief Justice of the Texas Supreme Court
because I knew his kids from soccer.
- Reddit. I have never used Reddit. However, it says “Reddit’s stories are
created by its users. Join the
community, vote and change the world.”
- Tumblr. Tumblr is another site I haven’t figured out
yet. It describes itself as “where tens
of millions of creative people around the world follow things they love.” My teenage daughter credits Tumblr on the
occasions when she is familiar with world events.
- Lawyer
Websites. Most businesses have
websites today. Websites are a form of
lawyer advertising. They barely qualify
as “new media.” Lawyer websites are not
interactive and are usually prepared by professionals. However, some of the content may actually
come from the attorneys.
For lawyers, new media allows the
same functions of promotion, education, advocacy and personal narcissism. However, it also allows purely personal
communication as well. The combination
of the commercial and the personal is what makes new media exciting and fraught
with peril.
The starting point for ethics in
social media is the First Amendment.
Social media is speech. When
ethics is used in the narrow sense of governmental regulation of attorney
conduct, the First Amendment prescribes the outer limits of that power. The First Amendment also impacts related
areas such as liability for defamation and employment. Here is a brief overview of some First
Amendment concepts.
·
There is a
hierarchy of First Amendment protections.
Speech on matters of public concern “occupies the highest rung of the
hierarchy of First Amendment values.” Snyder v. Phelps, 131 S.Ct. 1207, 1211 (2011). Thus, members of a fringe religious group
were entitled to protected from suit for intentional infliction of emotional
distress when their protest of a marine’s funeral related to matters of public
concern. The government may not
discipline an employee for speaking in his capacity as a citizen on a matter of
public concern. Lane v. Franks, 134 S.Ct. 2369 (2014). This issue arose in the social media context
where an Assistant State’s Attorney was terminated for publishing blog posts
containing documents he obtained through public records requests with regard to
the investigation of a police shooting.
The Court found that even though some of the documents posted related to
his duties as an ASA, they became public documents once he obtained them
through an open records request. The
Court found that the attorney was speaking as a private citizen on a matter of
public concern.
·
The First
Amendment sets the boundaries of private liability for defamatory speech. In New
York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held that a
public figure alleging defamation had to prove “actual malice” in order to
recover. Actual malice means knowledge that the statement was false or reckless
disregard of whether it was true or false.
In Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974), the Court found that the states could allow recovery for
defamation of a private figure for “any standard of care except liability
without fault.” Several years later, the
Court held that that a public figure could not recover damages for intentional
infliction of emotional distress based on a vulgar parody unless it showed that
it contained a statement of fact and was made with actual malice. Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
·
The First
Amendment offers less protection to “commercial speech” than communicative speech.
Commercial speech consists of “speech proposing a commercial transaction.” Ohralik
v. Ohio State Bar Association, 436 U.S. 447, 455-56 (1978). “(W)e … have afforded commercial speech a
limited measure of protection, commensurate with its subordinate position in
the scale of First Amendment values, while allowing modes of regulation that
might be impermissible in the realm of noncommercial expression.” Id.
·
The government
may prohibit commercial speech that is “false, deceptive or misleading” or
which “proposes an illegal transaction.”
Zauderer v. Office of General
Counsel,471 U.S. 626, 638 (1985). “Commercial
speech that is not false or deceptive and does not concern
unlawful activities, however, may be restricted only in the service of a
substantial governmental interest, and only through means that directly advance
that interest.” Id.
·
In Milavetz, Gallop & Milavetz, P.A. v.
United States, 559 U.S. 229 (2010), the Supreme Court found that requiring
attorneys who qualified as “debt relief agencies” to state “We are a debt
relief agency. We help people file for
relief under the Bankruptcy Code” was a permissible regulation of potentially
misleading advertisements.
·
Certain forms of
speech are not entitled to any First Amendment protection. These include speech intended and likely to
incite imminent lawless action, obscenity, child pornography, defamation,
so-called “fighting words” and speech presenting a grave and imminent threat
that the government has the power to prevent.
On the other hand, the government does not have the power to ban false
statements in general. United States v. Alvarez, 567 U.S. ___
(2012).
·
“Although the
internet is the latest platform for anonymous speech, online speech stands on
the same footing as other speech—there is no basis for qualifying the level of
First Amendment scrutiny that should be applied to online speech.” Fodor
v. Doe, 2011 U.S. Dist. LEXIS 49672 (D. Nev. 2011).
Taken together, this
survey illustrates that several old media principles remain viable for new
media as well.
- When attorneys advertise on social
media, they are subject to state regulation.
The state can prohibit advertising which is false, deceptive or
misleading and can adopt reasonable regulations to prevent this.
- When an attorney speaks on a
subject of public concern, such as discussing important cases and rulings, her
speech is entitled to the greatest protection available.
- Speech which is claimed to be
defamatory is analyzed the same whether it is on new media or old media.
III.
Defamation
Defamation is not a purely ethical
issue. ABA Rule 4.1 governs
Truthfulness in Statements to Others.
While it is unlikely that an attorney would face a grievance for general
false statements about others, it is growing increasingly likely that
statements made in social media could lead to a lawsuit for defamation. Because lawyers make their living from
representing people in litigation rather than parties to litigation, avoiding
suits for defamation is an application in practical ethics.
Several recent cases have dealt
with defamation in the context of social media.
The most important recent case dealing with defamation and blogging involved
Crystal Cox, a self-proclaimed “investigative blogger” who became convinced
that a bankruptcy trustee was up to no good.
She posted articles that accused the Trustee in the Summit Accomodators,
Inc. bankruptcy of fraud, corruption, money laundering and other illegal
activities in connection with the bankruptcy case. The District Court found that most of Ms.
Cox’s statements “employed figurative and hyperbolic language” and were not
subject to liability. Nevertheless, it
found that a blog post accusing the Trustee of failing to pay $174,000 in taxes
was sufficiently specific. The Court also found that the plaintiffs
were not required to show either negligence or actual damages because Ms. Cox
had failed to submit “evidence of her status as a journalist.” Ms. Cox was held liable for damages in the
amount of $2.5 million. On appeal, the
Ninth Circuit reversed. Obsidian Finance Group, LLC v. Cox, 740
F.3d 1284 (9th Cir. 2014).
The Court rejected the argument that the Gertz negligence standard only applied to the institutional
media. It found that “liability for a
defamatory blog post involving a matter of public concern cannot be imposed
without proof of fault and damages.”
The Court elaborated:
We
agree with our sister circuits. The protections of the First Amendment do not
turn on whether the defendant was a trained journalist, formally affiliated
with traditional news entities, engaged in conflict-of-interest disclosure,
went beyond just assembling others' writings, or tried to get both sides of a
story. As the Supreme Court has accurately warned, a First Amendment
distinction between the institutional press and other speakers is unworkable:
"With the advent of the Internet and the decline of print and broadcast
media . . . the line between the media and others who wish to comment on
political and social issues becomes far more blurred." (citation omitted).
In defamation cases, the public-figure status of a plaintiff and the public
importance of the statement at issue—not the identity of the speaker—provide
the First Amendment touchstones.
Other cases involving social media
and defamation include:
- Wallace
v. Perry (In re Perry),
423 B.R. 215 (Bankr S.D.Tex. 2010)
Debtor forwarded anonymous blog post about a business partner with whom
he was having a dispute. Debtor was
found liable for a nondischargeable debt for willful and malicious injury.
- Bui
v. Do (In re Do), 2013 Bankr.
LEXIS 1463 (Bankr. W.D. Tex. 2013).
Debtor accused plaintiff of being a communist sympathizer on his website. Debtor held subject to a nondischargeable
debt for willful and malicious injury.
- Purser
v. Scarbrough (In re Scarbrough),
2014 Bankr. LEXIS 3682 (Bankr. W.D. Tex.
2014). In one small piece of a much
larger case, the Court found that posting video obtained as evidence in a case
to YouTube with regard to a candidate for School Board was evidence of Debtor’s
intent to harm plaintiff. Court rejected
argument that this was protected First Amendment speech. (I represented the defendant and am
appealing this ruling).
- Franco
v. Cronfel, 311 S.W.3d 600 (Tex.
App.—Austin, 2010, no writ). Disgruntled
client posted scathing review of attorney on the Ripoff Report. The Defendant filed a Motion for Partial
Summary Judgment asserting that the attorney, who was acting as a state court
receiver, was a public figure, and that the Plaintiff had not produced any
evidence of actual malice. The trial
court granted the public figure motion and denied the no evidence motion. On appeal, the Court affirmed denial of the
no-evidence motion for summary judgment and found that it lacked jurisdiction
over the receiver’s cross-appeal on the public figure ruling. While the case is not very useful from a
precedential standpoint, it shows the difficulty that can arise from online
postings.
- Martin
v. Daily News, 2009 N.Y. Misc. LEXIS
3858 (N.Y. Sup. Ct. 2009). Newspaper
ran several stories about alleged corruption in the courts, one of which made a
factual misstatement. An attorney who
was involved in the case posted two blog entries which described what occurred
in the case. The Judge sued both the
newspaper and the attorney. The Court
dismissed the claims against the attorney for the blog postings.
Generally, defamation law requires
a four part analysis:
- Was
the statement made with regard to a fact or was it an opinion? Opinions cannot be defamatory. Only factual statements can be defamatory.Was
the statement false? Only false
statements can be defamatory. Garrison v. Louisiana, 379 U.S. 64
(1964). This facet of American law
distinguishes it from the law in some countries such as Sweden where a true
statement may give rise to criminal prosecution if it is meant to be vilifying.
- If
the statement was false, was the subject of the statement a public figure? If a public figure is involved, the plaintiff
must show that the statement was made with actual malice. If the statement involved a private figure,
it is enough that the statement was made negligently.
- If
the statement was made with the appropriate intent, did it result in
damages?
- In a case of defamation per se,
damages are presumed. Defamation per se
consists of accusing a person of a crime or several other options depending
upon the state. In Florida, defamation
per se includes accusing a person of having an infectious disease. Klayman
v. Judicial Watch, Inc., 2014 U.S. Dist. LEXIS 71045 (S.D. Fl. 2014). Otherwise, the plaintiff must prove actual
damages to prevail.
When blogging
about a court opinion, a blogger can protect himself by reporting upon the
facts found by the court or by clearly labeling statements as opinion. For example, assume that in a case under 11
U.S.C. §§ 523(a)(2) and (a)(4), the defendant was sued for a determination of
non-dischargeability based on fraud for failing to disclose that the property
sold was subject to mold contamination and for embezzlement for misapplying
funds received in trust to close the transaction. The court finds that the debtor did commit
fraud with regard to the mold contamination but does not find that the facts
met the requirements for embezzlement.
Consider the following scenarios:
- The blogger
writes: “The court found that the debtor knowingly failed to disclose mold
contamination in the property” This is an objectively true statement assuming
that the court actually said this.
- The blogger
writes, “The debtor knowingly failed to disclose mold contamination in the
property” The debtor could sue the blogger claiming that the statement was
false. However, the debtor would have
to show that: 1) the Court’s ruling was wrong; and 2) that the
blogger was negligent in reporting the statement as a fact. Given the fact that the statement was made
based upon a court’s finding, it would probably be a nearly impossible case to
meet.
- The blogger writes,
“The debtor was clearly guilty of embezzlement, but the court denied relief.” The blogger has made an affirmative statement
of fact that can be proved or disproved.
Whether the debtor was “clearly guilty” of embezzlement could be a true
statement or a false statement. For
example, if the court’s finding in favor of the plaintiff was based on the
plaintiff’s failure to offer the defendant’s statement to the police where he
admitted the embezzlement, then the statement could be true even though the
court did not make this finding. On the
other hand, if the blogger made the statement based upon his own unrelated
experience with the real estate agent without any personal knowledge about the
case or the record, then the statement could be found to be false and made with
either reckless intent or actual malice.
- The blogger
writes, “In my opinion, the evidence received was sufficient to establish
embezzlement” and the blogger genuinely held that opinion. The blogger would be
making a statement of opinion which would probably not be defamatory.
- The blogger
writes, “The court found against the debtor because he received a $10,000 bribe
from plaintiff’s counsel.” The blogger would be subject to a finding of
defamation (assuming that he did not have actual evidence of the bribe and its
effect on the ruling) and would be subject to a grievance under ABA Rule 8.2
which says that “(a) lawyer shall not make a statement that the lawyer knows to
be false or with reckless disregard as
to its truth or falsity concerning the . . integrity of a judge . . . .”
IV.
Common Ethical
Perils of Social Media
There are
several areas where the ABA Model Rules intersect with social media use as well
as several additional areas not covered by the rules. These include:
- Preserving
client confidences under ABA Rule 1.6;
- Trial
publicity under ABA Rule 3.6;
- Advertising
under ABA Rule 7.2;
- Derogatory
statements about an adjudicative official under ABA Rule 8.2;
- Conduct
prejudicial to the administration of justice under ABA Rule 8.4; and
- Recusal
or disqualification of the Court.
1. Client
Confidences
Preserving
client confidences and privileged information is one of the highest duties that
an attorney has. When an attorney blogs about his cases and
clients there is a risk of disclosing confidential information. ABA Model Rule 1.6(a) prohibits an attorney
from revealing “information relating to the representation of a client” unless
the client gives informed consent or it is necessary for the
representation. This duty is more
stringent than simply preserving attorney-client communication.
Several cases
demonstrate how disclosure of client information on social media can pose a
problem for attorneys. In one case, a
public defender began publishing a blog titled The Barrd Before the Bar to help
her cope with the stresses of practice.
She candidly described her clients’ circumstances, referring to them by
their first name or their jail identification number. Not only was she terminated from her
position, but the Illinois Attorney Registration and Disciplinary Commission
filed a complaint against her, resulting in a 60 day suspension of her license. In re
Peshek,
798 N.W.2d 879 (Wisc.
2011)(the published opinion resulted from a petition for reciprocal discipline
in Wisconsin). Another attorney, faced
with a scathing review from a client, posted “personal and confidential
information about the client that Ms. Skinner had gained in her professional
relationship with the client.” The
Georgia Supreme Court rejected the attorney’s request that discipline be
limited to a public reprimand. Matter
of Skinner, 740 S.E.2d 171 (Ga. 2013).
In contrast, a court found that
an attorney who blogged about public aspects of his clients’ cases was within
his First Amendment rights. The Court
stated:
It is settled that attorney speech about
public information from cases is protected by the First Amendment, but it may
be regulated if it poses a substantial likelihood of materially prejudicing a
pending case.
Hunter v. Virginia State Bar, 744 S.E.2d 611, 619 (Va. 2013). Thus, even though the information may have
been embarrassing to the client, the attorney was permitted to blog about it
because of the First Amendment protection.
2. Trial
Publicity
As indicated by
the quote from Hunter above, an
attorneys’ right to discuss a pending case may be limited if it is likely to
materially prejudice a pending case.
This prohibition is contained in ABA Model Rule 3.6 which bars
an
extrajudicial statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a substantial
likelihood of materially prejudicing an adjudicative proceeding in the matter
The peril of
extrajudicial statements is illustrated by an incident in the Paula Deen
litigation. An attorney representing
the Plaintiff tweeted his opinions about Paula Deen and the case. The Defendants then sought to have him
disqualified on the basis that he had violated Rule 3.6(a). The attorney then sought to have the motion
with the offending tweets sealed. The
Court denied both the motion to disqualify and the motion to seal. The Court stated:
(T)he
Court is unsealing the Billips tweets that directly and arguably relate to this
case. . . . Those statements were the legitimate subject of a disqualification
motion under the rules of professional conduct, which prohibit extrajudicial
statements by a lawyer who reasonably believes that his comments will be made
public and are likely to materially prejudice an adjudicative proceeding. (citation omitted). At the public hearing on the
disqualification motion, Court referenced these tweets and found that they
constituted improper comment about the merits of pending litigation—essentially
stating as fact what his client was alleging. While the Court noted that the ethics code
presumes that such demeaning comments tend to prejudice the proceedings, it
determined that the disqualification of counsel was not an appropriate sanction
under the circumstances of this case.
But because the Court analyzed Billups’ extrajudicial comments about
this case in assessing the merits of a nonfrivolous motion to disqualify him
due to their improper nature, and because defendants have never sought to have
those comments shielded from public view, the Court finds that they should no
longer be sealed. A further relevant
consideration: Mr. Billups’ comments add
little, if anything, to the rather incendiary allegations set out in
plaintiff’s amended complaint, a document already a part of the public
record. That no doubt explains why
defendants not only never sought to seal those extrajudicial statements but,
after discovering their existence, themselves
placed the tweets in the record of these proceedings.
Jackson v. Deen,
2013 U.S. Dist. LEXIS 65814 (S.D. Ga. 2013) at *15-16. While the attorney in this case was spared
disqualification, he was subjected to a very public tongue-lashing from the
Court.
3. Advertising
Advertising is
an area where the state may regulate attorney speech. However, determining what constitutes
advertising is not always easy. In Hunter v. Virginia State Bar, 744 S.E.2d
611 (Va. 2013), cert. den., 133 S.Ct.
2871 (2013), an attorney maintained a blog titled This Week in Richmond
Criminal Defense. The blog described
the attorney’s successes in court.
Indeed, twenty-two out of thirty postings concerned his cases. The blog was hosted on the firm’s website
which asked “Do you need Richmond attorneys?” The Virginia State Bar filed a disciplinary
proceeding on several grounds including the fact that the blog postings did not
contain a disclaimer. The trial court
found that the blog constituted advertising and should have included a
disclaimer. The attorney contended that
the blog did not constitute advertising and that the court below had violated
his First Amendment rights. The Court
rejected this position, stating:
(T)he inclusion
of five generalized, legal posts and three discussions about cases that he did
not handle on his non-interactive blog, no more transform Hunter's otherwise
self-promotional blog posts into political speech, "than opening sales
presentations with a prayer or a Pledge of Allegiance would convert them into
religious or political speech."
Id.
at 498.
On
the other hand, an attorney who sent unsolicited faxes containing an Attorney
Malpractice Report was found not to have sent solicitations under the Telephone
Consumer Protection Act. According to
the Court, because the attorney “furnished information about attorney
malpractice lawsuits; and the substantive content varied from issue to issue;
and the reports did not promote commercial products,” they did not constitute
solicitation. Stern v. Bluestone, 911 N.E.2d 844, 846 (N.Y. App. 2009). While this was a case under the TCPA, the
issue of distinguishing between commercial solicitation and informational
speech is the same. This is an example
of why context matters.
In both the Hunter and Stern cases, the attorney provided information about cases to
promote his business. However, in Hunter, the information provided was
about the attorney’s exploits, while in Stern,
the information demonstrated the attorney’s knowledge. Indirect promotion by demonstrating
knowledge will not ordinarily constitute advertising.
4. False
Statements About the Qualifications or Integrity of a Judge
While it is not
unusual for lawyers to complain about judges that they are unhappy with, social
media multiplies the opportunities for griping to lead to a grievance.
According
to ABA Model Rule 8.2(a):
A lawyer shall not make a
statement that the lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office.
Attorneys have faced disciplinary action
when they: “wrote in (a) blog that the
judges, guardian, ad litem and other attorneys involved in the guardianship
proceedings engaged in improprieties including theft and embezzlement,” Denison v. Larkin, 2014 U.S. Dist. LEXIS
111902 (N.D. Ill. 2014);
referred to one judge as “an asshole” and another as “Judge Clueless,” Complaint filed in Matter of Peshek, No. 09 CH 89, Illinois Attorney Registration and
Disciplinary Commission; and called a judge a “witch” in a blog, “Lawyer Agrees
to Reprimand for Tirade About Judge,” ABA Journal (June 11, 2008). These are examples of blogging that will
not enhance an attorney’s professional standing.
5. General
Dishonesty and Interference with the Administration of Justice
ABA Model Rule
8.4 contains several general ethical violations, including to:
(c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that
is prejudicial to the administration of justice.
In the Denison
case discussed above, the attorney’s claims of corruption in her blog also led
to disciplinary proceedings brought under Rule 8.4(c) and (d).
6.
Facebook Friends and
Judicial Disqualification
Anyone who has ever spent much
time on Facebook probably knows that there is only a tenuous connection between
Facebook friends and real world friendships.
Nevertheless, when a Judge “friends” a participant in litigation, it may
raise questions about the judge’s impartiality. When the judge was Facebook friends with the
prosecutor, this was grounds for disqualification in Domville v. State, 103 So.3d 184 (Fl.
App. 2012). However, in another case,
the fact that the judge was Facebook friends with one of the prosecution’s
witnesses and became upset when defense counsel accessed his page did not
require recusal. State v. Madden, 2014 Tenn. Crim. App. LEXIS 208 (Tenn. Cr. App.
2014). In the Madden case, the Court said that the defendant had to show not only
the relationship, but how it impacted the case:
Simply establishing that a trial judge is acquainted with a lawyer
or other person connected to a case does not establish an abuse of discretion
in the denial of a recusal motion.
(citation omitted). There must
be some connection between the judge’s relationship with a lawyer, party, or
witness and some action taken in the case.
Madden,
at *19-20. While the Madden case is probably accurate in
referring to Facebook friends as mere acquaintances, it seems to underestimate
the appearance of favoritism.
A good article
which contains additional ethical scenarios is “10 Tips for Avoiding Ethical
Lapses When Using Social Media” by Christina Vassiliou
Harvey, Mac R. McCoy, Brook Sneath in the January 2014 issue of Business Law
Today.
V.
Tips for Using
Social Media
Social media can be a valuable tool
for professional development as well as providing good experience sharpening
your writing and knowledge of current issues.
Obviously, a trip to the grievance committee or a lawsuit would wipe out
these benefits. Here are my thoughts
about smart use of social media. These
are mostly targeted to blogging, since that is where I have the most
experience. However, many of them will
apply across platforms.
1.
Decide why you
are using social media. An education
and advocacy blog is subject to different rules than one aimed at advertising
the lawyer’s services. Advertising is
generally incompatible with the purposes of social media since many state bars
require pre-screening. If you have to
submit each post to the bar, pay a fee and wait for a decision before posting,
your blog will not be very timely and it will get expensive quickly.
2.
Develop a theme
and a tone. A blog is partially about
building your online brand. Come up
with a theme and a style of writing that can be positively associated with
you. My theme is to write primarily
about Texas cases and national issues.
Tone is harder to define. Most
of my posts follow the format of: a lead
paragraph introducing the post, a description of what happened (the facts of
the case), how the court decided the issue and why it matters. By dividing the posts this way, readers can
go to what they care about. By keeping
my opinion (why it matters) at the end, the reader can make their own decision
about the case before getting to what I think about it. That way, if the reader disagrees with my
conclusion, he can still get some value from the post. I also try to describe complex legal situations
as clearly as I can and rely on the occasional pop culture reference to keep
the writing crisp. Generally I try to
keep my writing positive, pointing out how the case can be useful to the
practitioner. When writing about
ethical issues, I try to frame the case as a cautionary tale as to how the
person made choices which could have been avoided. Most of the time when I write about a case,
I either agree with the result or take a neutral editorial tone. When I disagree with an opinion, I try to
make clear that I am expressing my opinion and give reasons for that
opinion. I also avoid criticizing the
judge or the lawyers, preferring instead to disagree with the result.
3.
Don’t overly
promote yourself/don’t advertise.
Whenever a blog is about the blogger and not the content, it is moving
dangerously close to advertising. I
rarely write about my own cases. There
are several good reasons for this. I
prefer to write about written opinions since they provide something objective
to report. I also prefer not to write
about cases where I lost since they are likely to focus unpleasant attention on
myself or my client. The universe of
interesting cases that I am involved in and can write about without
embarrassment is pretty small. Another
reason not to overly focus on my own cases is that at some point it can cross
the line into advertising. If a blog
discusses the results of cases or comments upon legal issues, it is not
advertising. However, a blog devoted to
the attorney’s exploits in court in which he always prevails against better
funded opponents, then the blog is advertising or possibly fiction.
So what is the difference between
educational blogging and advertising? In
my view, it is the difference between demonstrating the attorney’s expertise
and insight as opposed to talking about how brilliant the attorney is. If you have to say it out loud, it probably
isn’t true.
4.
Be careful to report objective facts or to
give opinions and distinguish between the two.
As discussed above, defamation will not apply to true statements or
opinions. For your own credibility and
your financial interest, it is best to stick to facts that appear in the record
or are easily verified. Further, the
credibility of your blog will depend upon the credibility of your reporting and
the quality of your opinions. While the
law respects contrarian opinions, as shown by dissents which later become law,
opinions which are merely inflammatory or based on the author’s prejudices will
not build credibility.
5.
Do some actual
reporting when you can. Sometimes an
opinion may leave out critical facts that the parties took for granted. In this case, it can be helpful to consult
the underlying pleadings, prior court orders and lower court opinions to shed
light on the court’s opinion. Since
all of this information is available on PACER, it is appropriate for a blogger
to look this information up and explain how the court’s conclusions could have
been influenced by facts appearing in the record but not the opinion or
questioning why certain facts did not influence the opinion. This
is simply good legal journalism.
6.
Once you develop
a good product, promote it. The wider
your blog is distributed, the more benefit you will receive. I promote my blog through my own listserve. It is also distributed through the ABI Blog
page and the State Bar of Texas blog page.
7.
Moderate the
comments to your blog! 99% of the
comments I receive are spam. They tend
to obscure the substantive comments, although the comments from escort services
are interesting. As a result, I delete spam
comments before they ever post.
Sometimes a commenter will say things that are defamatory or that you
don’t want to be associated with. For
example, if a commenter says that “Judge X hates women” that is probably a good
comment to delete. Substantive comments
will build the credibility of your blog while nasty, irrelevant or incoherent
comments will take away from it.
