By now, you may have heard via Simple Justice or Legal Ethics Forum about the news accounts of the public defender who lost her job after posting a photo of her client’s leopard-print briefs on her Facebook page along with a caption suggesting that the underwear was the client’s family’s idea of proper court attire. Although the photo appeared on the PD’s private Facebook page viewable only by her FB friends, someone saw the photo and turned it over to the judge who declared a mistrial.
While lawyers have long been cognizant of the ethical dangers of social media, most of the first generation of gaffes resulted from open and obvious conduct – like tweeting a confidential settlement award or lying to or insulting a judge on a public blog or Facebook page. What sets this case apart is that the PD apparently took care to protect her posts to ensure that her remarks didn’t go beyond her inner circle.
Of course, one lesson here is that lawyers should never confuse social media or the Internet with Las Vegas since what happens online is never guaranteed to remain there. Whether it’s a 140-character tweet to a select handful of followers or a lengthy missive to a listserve, any viewer or recipient disseminate the information via a forward button or preserve it via screenshot. But by now, that digital communications leave a permanent impression ought to be obvious to most lawyers.
What interests me more about this story (and surprisingly, it’s a topic that I’ve not seen widely discussed) is the extent to which we lawyers have an obligation to address or report unethical conduct that we come across on private listserves or social media platforms. For example, did the PD’s lawyer friends who viewed her post (as well as other commentary expressing an opinion that her client was guilty) have an ethical obligation to report her to the judge – or at least confront her about the impropriety of her postings? If an attorney on a listserve discloses that he represents two co-defendants in a criminal matter where the only defense is to point the finger at each other, should other lawyers call the lawyer out on an un-waivable conflict – or go further and report the lawyer to the grievance committee or out them on blog?
Generally, when a lawyer-blogger or listserve member recommend or participate in conduct that’s ethically questionable, I’ll post a comment or perhaps send a private email. In most cases, I’ve found that the offenders simply didn’t realize that certain conduct (like fee-splitting or failure to put advance flat fees in a trust account in jurisdictions where they’re not earned on receipt) raised ethical red flags and were grateful for additional guidance. And while I don’t mind raising these issues a few times a month, as more lawyers share on social media platforms without discretion, taking the time to educate every one can quickly become unwieldy.
Still, lawyers have always faced difficult choices in determining whether to confront and/or report colleagues; social media hasn’t changed that. But what has changed is that until the advent of social media, never before did so many lawyers let their guard down so frequently before so many casual acquaintances. For those like me who grew up unpopular, the appeal of a broad circle of online friends, even fake ones, is at times irresistible. But if friending or following those we don’t know well exposes us to added ethics responsibilities, we may want to think twice before we connect.
What’s your view? When you come across ethics mistakes by your lawyer colleagues on social media platforms, do you respond? And if so, how – with a private message? A letter to the bar or a blog post about the conduct? And law profs and ethics gurus – what obligations do lawyers have to point out and/or correct unethical actions by colleagues? Please chime in below.