During the 2010 PGA Championship, professional golfer Dustin Johnson lost the chance to get into a playoff and contend for the title when he was assessed a penalty for grounding his club in an area deemed by officials as a “bunker.” Johnson failed to identify the area as a bunker, stating, “It never once crossed my mind that I was in a bunker. Obviously I know the rules of golf and I can’t ground my club in a bunker, but that was just one situation I guess.”1
Lawyers often find themselves in a similar situation. For example, lawyers “know” the Rules of Professional Conduct prohibit them from revealing confidentiality information, but they then may fail to realize that information in the public record is covered by the rule if it further meets COMMENT [3]’s description as “all information relating to the representation, whatever its source.”
While trite, it’s true to say that knowing the rules and applying them are two different skill sets.
Nowhere is this more accurate than in the use of social media in the practice of law.
COMMENT [8] to Model Rule 1.1 Competence states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology [emphasis added], engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
A lawyer’s ethical obligations to understand the impact of the “technology” of social media on a client’s representation was illustrated in a North Carolina Bar ethics opinion:
A lawyer must, as a matter of competence, advise a civil litigation client how the client's postings on social media may affect a suit that has been or is likely to be filed, for example their usefulness as impeachment. The lawyer may advise the client to remove posts if removal complies with the rules and law on preservation and spoliation of evidence. The lawyer may advise the client to change the client's social media privacy and/or security settings so as to restrict access if this will not violate any law or court order. N.C. Bar Opinion 2014-5 (7/17/15).
So now that we “know” the Rules of Professional Conduct require lawyers to assess the affect of social media on our daily practice, how do we apply that knowledge in the multiple areas where the affect occurs? A good place to start is to simply catalogue the contexts in which we regularly use social media and how the rules may be implicated as a result. For example:
Advertising
A California lawyer’s postings on the lawyer’s personal social media website must comply with the California Rules of Professional Conduct if the postings contain information concerning the lawyer’s availability for employment. See California Opinion 2012-186, holding that the post “Case finally over. Unanimous verdict! Celebrating tonight.” was okay, but the post “Another great victory in court today! My client is delighted. Who wants to be next?” would violate the Rules because it suggested availability for employment and variously further violated prohibitions on client testimonials and contained an impermissible prediction of “victory” for future clients.
Communication
Model Rule 1.4 Communication requires lawyers “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” A lawyer ran afoul of this duty when the lawyer responded to a client’s Facebook inquires with short, incomplete responses. See In re Garrison, 894 N.W.2d 339 (Neb.Sup.Ct. 2017). The client and lawyer communicated via Facebook messages. Throughout the case, the client asked numerous questions regarding the progress of the case and asked for explanations regarding the lawsuit. The lawyer responded with statements such as "relax", "I will take care of it", "I will explain later", "we are fine", "we won", "Be happy. We are in the driver's seat", "I'm busy right now", etc.
Advising the Client
A lawyer may advise a client on the client’s social media posting, including posts that may be removed, so long as the lawyer complies the rules and laws on the preservation and spoliation of evidence. See, New York State-New York County Opinion 745 (7/2/13)
False Friending/Catfishing/Pretexting
While lawyers are permitted to research an adverse party’s publically available information that is not password protected or firewalled, a lawyer is not permitted to “friend” an adverse party in order to gain access to the adverse partyu’s social media information. See e.g., Missouri Opinion 2009-003
Communication with Represented/Unrepresented Persons
A lawyer may view publicly available information on a social media site and may ask an account holder for access to nonpublic information if the account holder is not represented by counsel and the lawyer does not misrepresent the lawyer's role. If the lawyer knows that the account holder is represented by counsel, the lawyer may ask the account holder's lawyer for access to the information or for consent to ask the account holder for access. The lawyer may not use subterfuge to gain access to nonpublic information. Oregon Opinion 2013-189 (2/13).
Confidentiality and Discussing Client Matters
A lawyer may not post litigation material without first obtaining the client’s informed consent including what will be posted, how it will be posted, who will have access to view it, why the lawyer wants to post it and how the posting my affect the client’s interests. Even with client consent, the posting would be prohibited if it was misleading or embarrassing to a person without any legitimate purpose. Colorado Opinion 130 (4/3/17).
Perhaps the most comprehensive social media ethics opinion is District of Columbia Opinion 370 (11/16). At over 7,000 words, including footnotes, the opinion discusses the impact of social media on the District’s Rule 1.1 (Competence), Rule 1.6 (Confidentiality of Information), Rule 1.7 (Conflict of Interest: General), Rule 1.18 (Duties to Prospective Client), Rule 3.3 (Candor to Tribunal), Rule 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), Rule 5.3 (Responsibilities Regarding Non-Lawyer Assistants), Rule 7.1 (Communications Concerning a Lawyer's Services), and Rule 8.4 (Misconduct) Rule 8.5 (Disciplinary Authority; Choice of Law).
As should be clear, social media’s interplay with lawyers’ duties under the Rules of Professional is immense. Only by knowing the rules AND being willing to apply that knowledge to everyday circumstances of social media use can a lawyer fully protect themselves from professional harm.
1 “Penalty on 18 Dooms Dustin Johnson; ESPN; Harig, Bob; 8/16/210; http://www.espn.com/golf/pgachampionship10/news/story?id=5466521.
