As I usually do every year, I presented a CLE for the Vermont Paralegal Organization on Wednesday. I present for many groups. I assure you that there is no group more dedicated to providing competent services than Vermont’s paralegals. They are a valuable resource that we should not overlook or undervalue.
The topic was social media & legal ethics. My theme was “Keep it Real.” I tried to convey that social media isn’t so much the cause of misconduct as it is a relatively new forum for misconduct that has always existed. That is, if it’s wrong in real life, it’s wrong on social media.
Here’s how I tried to make my point.
Consider the following 8 headlines. You’re only allowed to click on 4. Which do you choose?
- Judge reprimanded for sexting women in his robes.
- Judge sanctioned for harassment.
- Instagram posts land Lawyer in hot water.
- Lawyer sanctioned for misrepresentation to a tribunal.
- Lawyer suspended over rude Facebook message to client.
- Lawyer suspended for failing to properly communicate with client.
- Facebook spoliation results in $700K in sanctions and 5-year license suspension.
- Lawyer suspended for discovery violations and lack of candor to a tribunal.
I’m guessing that many of you have already figured it out. While the list includes 8 headlines, there are only 4 stories. Clicking on 1 or 2 would return the same story. The same goes for 3 & 4, 5 & 6, 7 & 8.
It seems to me that “social media sells.” Its click-bait nature, I think, does a disservice in the sense that in each of the 4 matters, the conduct would have resulted in disciplinary sanctions even if it had not involved social media.
For instance, the Tennessee judge’s ‘overtly sexual’ messages would’ve have been just as wrong if sent via U.S. mail with accompanying Polaroids. (h/t ABA Journal).
The Instagram posts that revealed this lawyer’s dishonesty did not make the lawyer’s misconduct any worse than it already was.
A lawyer who is rude and/or non-responsive to a client’s Facebook Messages is no different than a lawyer who is rude and/or non-responsive to a client’s phone calls and letters.
Finally, counseling a client to destroy evidence, lie about it in discovery, and then attempt to cover-up the entire scheme is a violation regardless of whether the evidence is electronic. (h/t Above The Law).
Imagine the following ethics inquiry:
- Lawyer: “Mike, can I send a Facebook message directly to my client’s represented adversary?”
- Me: “Would that be okay to do by letter in real life?”
- Lawyer: “No.”
- Me: “There you have it. Keep it real.
Below, I’ve pasted in links to resources. It’s a sampling, not an exhaustive list. If you only have time for one, I recommend the Social Media & Legal Ethics Guidelines published by the Commercial & Federal Litigation Section of the New York State Bar Association.
In closing, does social media raise new questions?
But, often, the answer is the same as it was in the old days.
What’s wrong is wrong.
- The Social Media Guidelinesof the Commercial and Federal Litigation Section of the New York State Bar
- Pennsylvania Bar Association Formal Opinion 2014-300 – Ethical Obligations For Attorneys Using Social Media
- North Carolina State Bar’s 2018 Formal Ethics Opinion 5
- Professional Ethics Committee of the State Bar of Texas – Opinion 671
- Philadelphia Bar Association Opinion 2014-5
- Massachusetts Bar Association Committee on Professional Ethics Opinion 2014-5
- Oregon State Bar Opinion 2013-189
- New Hampshire Bar Association Ethics Committee Advisory Opinion 2012-13/05