Professional Conduct and Legal Ethics
| Publication year | 2021 |
| Pages | 38 |
Just Don’t Do It
Lawyers, Extra judicial Statements, and Social Media
BY ANN M. ROAN
This article examines the ethical boundaries on lawyers' use of social media.
Anyone with an Internet connection "can become a town crier with a voice that resonates farther than it could from any soapbox."[1] Indeed, social media is the "modern public square."[2] But Colorado's Rules of Professional Conduct (Colo. RPC or Rules) impose limitations on what a lawyer can say about a client in the course of representing the client, after that representation ends, or even in the context of the lawyer's professional activities. These limitations include online posts. Combined with the limits on what lawyers can and cannot ethically discuss, the far-reaching consequences of social media statements resulting from lapses in professional judgment should make lawyers wary about wading into social media's waters.
Lawyers using social media in the practice of law"should stay reasonably informed" of social media's features, capabilities, and security measures and how those could "impact their ethical obligations."[3] Nevertheless, while practicing attorneys are presumed to know the rules of law, including the Colo. RPC,[4] the rules governing extra judicial statements largely predate social media, and most states—including Colorado—have not amended them to reflect social media's impact.[5] This article offers guidance for lawyers who are considering making statements on social media.
The Rules Framework
The Colorado ethical rules most relevant to extra judicial statements include Rules 1.6 (confidentiality of information), 3.6 (trial publicity), 4.1 (truthfulness in statements to others), 4.4 (respect for rights of third persons), and 4.5 (threatening prosecution). In addition, prosecutors also must follow Rule 3.8 (special responsibilities of a prosecutor).
Rule 1.6(a) provides that, absent informed consent or implied authorization by the client, a "lawyer shall not reveal information related to the representation of a client." By its plain terms, Rule 1.6 is not limited to information outside the public record. Consequently, lawyers may not reveal client confidences or any other information learned in the course of representation, even if they are part of the public record, except as the specific exceptions in Colo. RPC 1.6 permit.
Rule 3.6 is similarly broad: a lawyer presently or formerly involved in a case or investigation "shall not make an extra judicial statement that the lawyer knows or reasonably should know" will be publicly disseminated and that has a substantial likelihood of "materially prejudicing an adjudicative proceeding in the matter."[6] Rule 3.6(b) and (c) identify certain information as exceptions that a lawyer may discuss in a public forum. Like Rule 1.6, Rule 3.6 is not limited to statements made in the course of representation.
Next, Rule 4.1 requires truthfulness in a lawyer's statements to others, but only "in the course of representing a client" That same limitation applies to Rule 4.4(a)'s requirement that a lawyer refrain from conduct that has "no substantial purpose other than to embarrass, delay, or burden a third person[.]" This consideration may be particularly acute given the internet's ability to amplify statements to this effect.
Rule 4.5(a) additionally prohibits a lawyer from threatening "criminal, administrative or disciplinary charges" to obtain an advantage in a civil matter, regardless of whether the lawyer seeks gain for a client or anyone else (including personal gain) by doing so. Along the same lines, Rule 3.8(f) requires that prosecutors make only those statements "necessary to inform the public of the nature and extent of the prosecutor's action in serving a legitimate law enforcement purpose" and refrain from making extra judicial statements that have a "substantial likelihood of heightening public condemnation of the accused." Rule 3.8(f) is not limited only to prosecutors' extra judicial statements; they must also exercise "reasonable care" to make sure "investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case" do not make extra judicial statements prohibited by eider Rule 3.8(f) or Rule 3.6.
Colorado Opinions on Lawyers and Social Media
Two notable cases, People v. Isaac[7] and People v. Piccone[8] directly address how lawyers' social media use can violate the Rules.[9] Understanding their reasoning helps identify social media activities to avoid.
Isaac; Responding to Negative Client Reviews
Isaac, which addressed only Colo. RPC 1.6, was the first ethics case in Colorado concerning lawyers and social media use.[10] After Isaac discovered two negative reviews from former clients on Google Plus, he posted responses on that same platform.[11]
Isaac's response to the first review described his former client as "abusive, demanding, insulting and offensive," while also insisting that" [a] s with all ethical lawyers, it is inherently inimical, to me, to engage in conduct so base as calling... my clients ... 'names."'[12] His response further revealed that the former client had been charged with felony theft, and it noted that he had filed motions based on facts the client could not substantiate.[13]
Responding to the second negative review, Isaac again revealed the charges against his former client and claimed that her $4,000 check for his services had bounced.[14] He also accused this former client of committing two other uncharged offenses: forging affidavits and then notarizing them, despite not being a notary public.[15]
The presiding disciplinary judge(PDJ) rejected Isaac's claim that Rule l.6(b)(6) permitted these posts. That rule permits (but does not require) a lawyer to disclose confidential information
to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.[16]
The PDJ found that Isaac's disclosures exceeded those authorized by Rule 1.6(b)(6), both because they went beyond what was reasonably necessary to establish a defense[17] and because " [i]n both instances, it appears that [Isaac] disclosed his clients' criminal charges and other alleged misdeeds simply to embarrass or discredit the clients."[18] The opinion cautioned that responding to negative online reviews not only was "an ethical minefield" but also would likely reinforce the negative review and '"fall into the trap of appearing dun-skinned and defensive.'"[19] The PDJ gave no weight to the argument that some of the information in the responses was in the public record, because Rule 1.6(a) "applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source!'[20] The PDJ suspended Isaac's license to practice law for six months, with the requirement that he petition for reinstatement.[21]
Piccone: Posting About Clients' Cases
Four years later, a lawyer's social media activity gave rise to another disciplinary proceeding, again concerning Rule 1.6(a), but also implicating Rules 3.6(a) and 4.4(a).[22] Piccone involved a solo practitioner who managed all of her firm's social media accounts. Piccone held herself out as an animal law lawyer. She also formed two 501(c)(4) corporations, one that advocated a "no-kill" policy for all Colorado animal shelters and another that lobbied to repeal the City of Aurora's pit bull ban.[23] "In her capacity as an activist," Piccone ran a Facebook page called "SAVE pets from Aurora Colorado Animal Care and Control ('SAVE')."[24]
In two separate cases, Piccone represented clients whose pit bulls allegedly violated various provisions of the Aurora Municipal Code. The owners were also cited for violating the Aurora Municipal Code for their dogs' misbehaviors. The dog in the first case was named Bandit; the dog in the second case was named Diamond.[25]
Piccone's engagement agreement in both cases included a section entitled "Publicity, Media and Fund raising," which authorized her to give "non-confidential information from the public record" to the media, including social media, and to use that same information in interviews. The agreement stated that "all confidences will be preserved."[26] That section also authorized Piccone to use photos of the dogs on social media platforms and to discuss the cases in "generic non-identifying terms," even after her representation ended.[27]It further authorized her to create fund raisers to pay her fee, "either alone or in combination with the client's efforts to crowd fund."[28] Under the fee agreement, she reserved the right to reinstate previously written-off charges if the clients fired her before the cases were completed.[29]
After Aurora's municipal court ordered that Bandit be killed and stayed that order pending appeal, Piccone filed an appeal, hoping to move Bandit from the Aurora Animal Shelter and develop evidence that would both prevent the dog's execution and resolve the charges against his owners.[30] The shelter refused to let Piccone's expert evaluate Bandit outside his cage, and after the municipal court upheld that decision, Piccone took to the Internet, linking a Go Fund Me fund raising page for her legal costs to posts on both her firm's and SAVE's Facebook pages.[31] Those posts stated that "Aurora CO wants to kill Bandit. Please don't let them get away with it."[32] She also noted that Bandit's $450 moodily boarding fee was coming due.[33] In subsequent posts...
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