Facebook and Legal Ethics: Be Careful Out There

05 Feb Facebook and Legal Ethics: Be Careful Out There

While the use of social media offers great opportunities in networking and client development for lawyers, a recent article in the American Bar Association Journal highlights some of the potential pitfalls. Seduced: For Lawyers the Appeal of Social Media is Obvious. It’s Also Dangerous, is an excellent article discussing the new ethical landscape created by on-line and social media networks. It highlights several lawyers who ran afoul of ethical requirements as a result of Facebook and blog posts, and discuss what went wrong. A few horror stories:

  • Florida criminal attorney Sean W. Conway made derogatory comments on JAABlog about a judge whom he believed was pressuring defendants into waiving their speedy trial rights. The result? A public reprimand and fine from the Florida Supreme Court.
  • North Carolina judge B. Carlton Terry Jr. was publicly reprimanded by the state’s Judicial Standards Commission because he became a Facebook friend of an attorney appearing in a case before him, and exchanged several comments about the case.
  • Kristine A. Peshek was an assistant public defender in Illinois was fired and charged with ethical violations for blogging about cases she worked on and allegedly revealing privileged client information.

Is friending an opposing party represented by counsel to see their Facebook page a violation of ethics? According to Oregon State Bar Opinion No. 2001-164 (January 2001), it violates Model Rule 4.2. How about an unrepresented witnesses? If you try to friend the witness using a false name or information, this is a violation. But if you use your real name, it is not, at least in New York City. Committee on Professional and Judicial Ethics Opinion 2010-2 (September 2010). In Philadelphia, however, it is. Professional Guidance Committee Opinion 2009-02 (March 2009).

How about a judge friending an attorney who appears before him or her? In North Carolina, as noted above, and Florida, it’s improper. In Kentucky, New York and South Carolina, it’s fine, with some caveats. If there is a “close social relationship,” it must be disclosed or the judge must recuse him or herself.

Advertising is also a problem. Is a tweet about a favorable verdict an ad that needs to be approved (particularly where the state-required disclosure is longer than 140 characters)? How about an online chat where you talk about how many bankruptcy cases you have filed? In states where pre-approval of all legal advertising is required, this can cause significant problems. And what is a client posts a glowing review of your work on LinkedIn or Facebook? Under Rule 7.1, all the information posted about you must be correct under Rule 7.1. Does the review also need to comply with the Rule? According to the Ethics Advisory Committee of the South Carolina Bar, Ethics Advisory Opinion 09-10 (2009) and the Ohio Board of Com missioners on Grievances and Discipline No. 2000-6 (2000), the recommendation must not “create unjustified expectations or otherwise mislead a prospective client” or the attorney might be in violation of the Rule.

This is an excellent article that I strongly encourage all lawyers to study carefully.

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Brett Weiss, a senior partner at Chung & Press, LLC, represents people and businesses in all phases of bankruptcy. He has experience in complex individual Chapter 7, Chapter 11 and Chapter 13 bankruptcy cases, and in Chapter 11 small business restructuring and reorganization. Mr. Weiss lectures nationally on bankruptcy issues. He has testified before the Federal Bankruptcy Rules Committee, the Consumer Financial Protection Bureau, and has twice testified before Congress on bankruptcy and credit issues. Brett Weiss is the co-author of Chapter 11 for Individual Debtors, and has written Not Dead Yet: Bankruptcy After BAPCPA, for the Maryland Bar Journal, as well as hundreds of blogs for the Bankruptcy Law Network. With his law partner, he recorded a 13-hour basic bankruptcy training series, and leads intensive three-day Chapter 11 training boot camps. Mr. Weiss has received international media attention in connection with his work. He was interviewed by Barbara Walters on The View, has appeared on the Today Show, Good Morning America, ABC News with Peter Jennings, the Montel Williams Show, National Public Radio, AARP-TV, the BBC World Service, German state television, and numerous local radio and television programs, and been quoted in Money magazine, The Washington Post and The Baltimore Sun, among others. Brett Weiss is the Maryland State Chair for the National Association of Consumer Bankruptcy Attorneys, a founding member of the Bankruptcy Law Network, on the board of the Maryland State Bar Consumer Bankruptcy Council, and a member of the American Bankruptcy Institute, the Bankruptcy Bar Association of Maryland, and the Civil Justice Network. He has been recognized as a “Super Lawyer” every year since 2007 for Maryland and the District of Columbia, and in 2011 received the Distinguished Service Award from the National Association of Consumer Bankruptcy Attorneys for his work on behalf of consumers across the country. Mr. Weiss is admitted to practice before Maryland and District of Columbia federal and state courts, the United States Courts of Appeals for the DC, Fourth and Eighth Circuits, The United States Tax Court, and the Supreme Court of the United States, and has been practicing law since 1983.
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