Social Media and Lawyers’ Duty To Report
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.
It seems to me that law profs and ethics gurus are
unnecessary to answer your question about what obligations lawyers have to
point out and/or correct unethical actions by colleagues: See ABA Model Rules
of Professional Conduct:, Rule
8.3 which reads in part:
Maintaining The Integrity Of The Profession
Rule 8.3 Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a
violation of the Rules of Professional Conduct that raises a substantial question
as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority….
The Comment to Rule 8.3 [3] further provides:
8.3 [3] If a lawyer were obliged to report every violation
of the Rules, the failure to report any violation would itself be a
professional offense. Such a requirement existed in many jurisdictions but
proved to be unenforceable. This Rule limits the reporting obligation to those
offenses that a self-regulating profession must vigorously endeavor to prevent.
A measure of judgment is, therefore, required in complying with the provisions
of this Rule. The term “substantial” refers to the seriousness of the
possible offense and not the quantum of evidence of which the lawyer is aware.
A report should be made to the bar disciplinary agency unless some other
agency, such as a peer review agency, is more appropriate in the circumstances.
Similar considerations apply to the reporting of judicial misconduct.
In reply to your question: “[D]id 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?”, the answer
depends on whether the PD’s egregious breach of the client’s confidentiality “raises
a substantial question as to that lawyer’s honesty, trustworthiness or fitness
as a lawyer.” The answer, to my mind, is
self-evident.
Since Nino already answered the question and took all the fun out of it for the rest of us, I have barely two cents to add. You write:
” 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.”
Social media has given lawyers far more rope than they ever had before. And so, lawyers have used it to hang themselves. I really never knew how many lawyers who seemed fairly good were incompetent and unethical until social media came along. It’s been eye opening.
My way of dealing with it is usually to contact lawyers directly about problems. Some don’t take it well, and call me mean names. On occasion, I write about it if I think others need to be made aware of issues. Often, the person I write about doesn’t take it well. So it’s a bummer either way.
I believe you have a positive duty, nay, an absolute obligation to report me to the Party Pooper Society.
How could she possibly think making that post was a good idea? I’m flabbergasted.
The lawyer’s friends did report her to the judge and that is how the post and picture became public.
Interesting article