Facebook post prompts reprimand from BBO.

Byline: Kris Olson

An attorney who posted information about a client's case on his personal Facebook page violated Rule 1.6(a) of the Rules of Professional Conduct, the Board of Bar Overseers determined in reversing a hearing committee's recommendation.

In his initial post, the attorney referenced the fact that he had just appeared in Berkshire Juvenile Court on behalf of a grandmother seeking guardianship of her 6-year-old grandson, neither of whom he named.

In response to a pair of comments that the post received, he divulged additional details about the case.

As described in Comment 3A to Rule 1.6(a), "confidential information" includes "information gained during or relating to the representation of a client, whatever its source, that is likely to be embarrassing or detrimental to a client if disclosed," the BBO noted.

In recommending dismissal of the petition for discipline, the hearing committee concluded that the information the attorney had posted could be detrimental to the client only if it could "reasonably be linked to her." Here, there was no reasonable likelihood that the client could have been recognized, the committee decided.

But the BBO disagreed with that analysis, finding that bar counsel had produced sufficient evidence to prove a violation of Rule 1.6 (a) by showing that the client and her daughter both recognized that the Facebook post concerned the client, even if there was no evidence that anyone else had identified her.

"There is no requirement that a third party actually connect the dots," Elizabeth Rodriguez-Ross wrote on behalf of the BBO majority. "If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule."

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"In posting on Facebook, the respondent did not seek advice from other lawyers, nor can we discern any other purpose that would have served his fiduciary duty to his client."

BBO majority

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The BBO also found there was "no legitimate analogy" between the lawyer's Facebook post and "shop talk" among attorneys, which is expressly permitted according to Comment 4 to Rule 1.6(a).

"In posting on Facebook, the respondent did not seek advice from other lawyers, nor can we discern any other purpose that would have served his fiduciary duty to his client," Rodriguez-Ross wrote.

The BBO added that the scope and duration of the consequences of disclosing confidential information is now "virtually limitless" thanks to social media.

"Given the reach of the...

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