Last fall, I posted Social Media & Legal Ethics: Keep it Real. Echoing a point I’d stressed at a recent CLE, it’s a post in which I argue that when it comes to violations of the Rules of Professional Conduct, social media isn’t the issue. Rather, the issue is conduct that is unethical even if never posted to social media.
Today, I’m here to argue that a comparison of three recent headlines proves my point.
- Nashville lawyer suspended after posting how to make murder look like self-defense.
- Lawyer suspended for Facebook advice on how to shoot an abuser and avoid a conviction.
- Tennessee Lawyer Suspended for Telling Woman How to Get Away with Killing Her Ex.
Unlike the first two, #3 doesn’t reference social media. But doesn’t it convey all you need to know?
Don’t advise people how to get away with murder!
The opinion from the Tennessee Supreme Court is here. The first line of the opinion is:
“This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”
But it’s also a case that is a cautionary tale on the ethical problems that can befall lawyers who advise people on how to get away with murder.
Sure, posting the advice to social media might make it more likely that you get caught, but social media isn’t the problem.
The problem is the advice!
Here, there’s no difference between the lawyer giving the advice in a private room or crowded bar and the lawyer posting the advice in a Facebook comment. Nevertheless, we seem intent on convincing lawyers that social media poses ethical risks when, in fact, social media only provides lawyers with a medium to advertise conduct that is otherwise unethical.
Social media doesn’t make it wrong. Doing it makes it wrong.
This said, I’m relieved by an aspect of the Tennessee decision. The lawyer argued something to the effect, and I paraphrase, “obviously I was kidding! Who would be so dumb as to post something like that to social media if they weren’t being sarcastic?!?”
Still, had the Tennessee court agreed, it would’ve provided the ultimate out: “the fact that I put it on in social media is proof that I didn’t engage in misconduct.”
The fact that you used social media to engage in or publicize conduct that is unethical is proof that you violated the rules.