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Think Before Tweeting: An Overview of an Attorney's Duties With Respect To Social Media

By David D. Samani

David Samani is a partner in the Los Angeles office of Lewis Brisbois Bisgaard & Smith LLP and a member of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee. The opinions expressed here are his own.

Social media is a powerful tool for networking and communication, allowing users to publish information with ease. But the ease and accessibility provided by the platform poses risks, as the ill-considered use of social media may raise ethical and/or liability concerns vis-à-vis 1) current or former clients, 2) prospective clients, and 3) third parties. An attorney using social media should be mindful of how the attorney's duties of confidentiality, loyalty, and care may be implicated.

Confidentiality

An attorney must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."[1] Thus, though attorneys may be eager to share a great result, or respond to a less-than-favorable post, they should remain cognizant of the potential confidentiality implications.[2] Even though some information about the representation of a client may be public record, a client may expect its attorney to refrain from publicizing the information.        

An attorney who posts client information without securing client consent may be accused of violating his or her duty of confidentiality.[3] Even employing hypotheticals or pseudonyms may not suffice to immunize an attorney from concerns about breach of confidentiality.[4] Prudence dictates obtaining client consent before posting anything client-related, and best practices may call for sending a draft of any planned post to the client for approval.

Loyalty

Social media use also carries concerns regarding an attorney's duty of loyalty to a client. Pursuant to rules 1.7, 1.8, and 1.9 of the California Rules of Professional Conduct, an attorney must avoid representing interests adverse to a client, and must avoid using information acquired during a representation to the disadvantage of a client.[5] Attorneys interacting over social media should be mindful of the risk that contacts with other users may be interpreted as potentially establishing an attorney-client relationship which may conflict with the interests of a current client.

Furthermore, though attorneys may no doubt develop personal opinions about their cases, the attorney must remember that, even in the social media world, the attorney's duty of loyalty may require the exercise of caution before posting anything that can be viewed as criticism of a client.[6]

Care

A practitioner may not be able to avoid social media entirely. Rather, the duty of care may require an attorney to use social media or, alternatively, caution a client about responsibly using social media, particularly with respect to litigation.[7] Litigators may be expected to thoroughly research parties, witnesses, and/or potential jurors' social media profiles.[8] Still, an attorney must take care to avoid interactions that may be deemed deceptive or potentially constituting improper communication with a represented party under rule 4.2.[9]

Likewise, a litigator may need to counsel clients about social media use. Again, though, the practitioner must strike a balance between cautioning a client about the potential negative impacts of social media[10] and ensuring an overzealous client does not potentially face accusations of spoliation.[11]

Prospective Clients

Because social media typically allows content consumers the ability to interact with the originator, attorneys should be wary of inadvertently giving rise to a duty or inducing reliance on legal analysis and opinions. For instance, rule 1.18 sets forth an attorney's duty to a prospective client, defined as "[a] person who . . . consults with a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer's professional capacity . . . ." Consequently, a blog about a legal issue that generates a comment or query in response may create a question as to whether the commenter qualifies as a prospective client, thereby triggering rule 1.18's obligations.[12]

Practitioners should also be mindful that, notwithstanding the informality of social media, statements made regarding the provision of services should be crafted with the applicable rules governing advertising in mind. For instance, rules 7.1, 7.2, and 7.3 of the Rules of Professional Conduct all set forth standards concerning advertisements and solicitation, which may be implicated by even a casual social media posting.[13]

Third Parties

Responsible social media use also requires attention to potential problems that might arise from interaction with third parties. GetFugu, Inc. v. Patton Boggs LLP highlights some potential risks.[14] In Getfugu, the plaintiff sued the defendant attorneys for defamation based on statements made in a press release and posted by the attorney on the social media website Twitter. The tweet at issue in GetFugu was ultimately deemed an opinion, but it nevertheless demonstrates the threat of liability over casual online posts.[15]

Moreover, even posts falling outside the professional sphere may be a cause for concern, as an attorney can be disciplined for any act involving moral turpitude, dishonesty, or corruption "committed in the course of . . . relations as an attorney or otherwise . . . ."[16] Consequently, any disingenuous or deceptive conduct online may pose risks.[17]

Social media can be a useful, and perhaps unavoidable, tool for an attorney. Practitioners should remember, though, that the informality frequently employed online may have concrete, real-world implications.[18]



[1] Bus. & Prof. Code § 6068(e); see also Cal. Rules of Prof. Conduct, R. 1.6(a).

[2] See In re Skinner, 292 Ga. 640 (Ga. 2013) (public reprimand where attorney posted confidential information in responding to a negative review).

[3] See ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 480 (2018) (matters of public record may still be subject to the duty of confidentiality).

[4] See ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 480, fn. 12.

[5] See also Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (Cal. 2011) (duty of loyalty continues after representation ends).

[6] See L.A. County Bar Op. 525 (2012).

[7] In civil litigation, the applicable standard of care is typically the subject of expert testimony. See Lipscomb v. Krause, 87 Cal. App.3d 970, 76 (Cal. Ct. App. 1978).

[8] See, e.g., Johnson v. McCullough, 306 S.W.3d 551, 558-559 (Mo. 2010) (concluding that "reasonable efforts" to investigate potential jurors included searching the internet).

[9] See Robertelli v. N.J. Office of Atty. Ethics, 224 N.J. 470 (N.J. 2016) ("friending" represented party on Facebook prompted disciplinary proceedings).

[10] See, e.g., Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 11971 (N.D. Cal. 2010) (plaintiff's blogging and other internet communication about case deemed to have waived attorney-client privilege).

[11] See Allied Concrete Co. v. Lester, 285 Va. 295 (Va. 2013)

[12] See Miller v. Metzinger, 91 Cal.App.3d 31 (Cal. Ct. App. 1979) (initial communications with prospective clients may result in attorney owing duties); see also Mass. Comm. on Prof. Ethics, Op. 07-01 (2007) (noting that absent an effective disclaimer, an unsolicited e-mail may trigger duties to the sender).

[13] See Cal. State Bar Form. Op. 2012-186 for a discussion of advertising and social media.

[14] 220 Cal.App.4th 141 (Cal. Ct. App. 2013).

[15] See also Obsidian Fin. Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014) (concluding that blogger could face liability for libel for posting about matter of public concern if found to have acted negligently).

[16] Bus. & Prof. Code § 6106.

[17] For example, in In re Carpenter, 95 P.3d 203 (Or. 2004), the Oregon Supreme Court upheld the disciplining of an attorney for an "online prank" involving the use of a fake account to post unflattering comments that portrayed a former teacher in a negative light.

[18] This article cites a number of out-of-state authorities and opinions interpreting the ABA Model Rules, which have not been adopted in California. These authorities are not binding, but may serve as persuasive authority in the absence of controlling California authority. See Cal. Rules of Prof. Conduct, R. 1.0, comment [4].