IT'S 3 A.M.: DO YOU KNOW WHAT YOUR STAFF JUST POSTED? SOCIAL MEDIA ETHICS PITFALLS FOR APPELLATE LAWYERS AND JUDGES.

• Author: Browning, John G.

Appellate lawyers, judges, and the staff who work for them live and work in an increasingly wired world. More than 72% of adult Americans use social media to connect with one another, engage with news content, share information, and entertain themselves. (1) Facebook remains the most popular platform, with over 2.3 billion users worldwide, but sites like Instagram, Snapchat, Twitter, YouTube, and LinkedIn are also hugely popular. (2) The amount of content generated or shared on social media platforms is staggering: Twitter alone processes more than one billion tweets every forty-eight hours, and in 2020 there were 7,000 tweets about just TV or movies every minute. (3) Given social media's popularity and the sheer volume of content posted on various social media platforms, the potential for using social media in ways that violate the ethical obligations of lawyers and judges looms large. Lawyers from nearly all practice areas have tweeted, snapchatted, posted, and instagrammed their way into disciplinary proceedings, judicially imposed sanctions, and the unemployment ranks. (4) And yes, these include even lawyers and judges from the comparatively staid, even monastic confines of the appellate world.

This article examines the ethical risks for appellate lawyers and judges in using social media. While reviewing the record in an underlying case and engaging in legal research may not be typical paths to online ignominy, breaching confidentiality by discussing certain aspects of a case on social media platforms is a very real danger. An equally significant but often overlooked area of responsibility regarding social media stems from appellate judges' and lawyers' obligation to ensure that their non-lawyer staff adhere to applicable standards of conduct. In recent years, being the "digital brother's keeper" of one's non-lawyer staff has assumed increasing importance, as the country's polarized political climate, pandemic-induced anxiety, and remote working environments have created a perfect storm for ethical risks and reputational damage for lawyers and their firms as well as for judges and their courts. As this article demonstrates, while judicial ethics authorities are beginning to provide guidance on this subject and courts are adopting social media policies for their staffs, much work remains to be done.

1. THE SINS OF OTHERS

   Before examining the ethical risks for appellate lawyers and judges for their own conduct on social media, we begin with a look at the ethical dangers arising from non-lawyer staff members' use of such platforms. American Bar Association (ABA) Model Rule of Professional Conduct 5.3 provides that both partners and lawyers with direct supervisory authority over non-lawyers must make "reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." (5) Rule 5.3(c) mandates that a lawyer shall be responsible for conduct of a non-lawyer employee that would be a violation of the Rules if engaged in by a lawyer, if the lawyer orders or ratifies the conduct involved, or if the lawyer is a partner or someone with comparable managerial authority and the lawyer "knows of the conduct at the time when its consequences can be avoided or mitigated but fails to take reasonable remedial action." (6) For judges, Canon 1.2 of the ABA Model Code of Judicial Conduct states that "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." (7) Canon 2.12(A) stipulates that "[a] judge shall require court staff, court officials, and others subject to the judge's direction and control to act in a manner consistent with the judge's obligations under this Code." (8) Among those obligations, ones that loom large in the age of Facebook and Twitter include Canon 2.10 and Canon 3.5. (9) Canon 2.10 admonishes judges not to make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a pending or impending matter. Canon 2.10(C) states that a judge "shall require court staff, court officials, and others subject to the judge's direction and control to refrain from making statements that the judge would be prohibited from making in paragraphs (A) and (B)." (10)

   1. Lawyers, Their Non-lawyer Staff, and Social Media

      In a profession in which maintaining confidentiality is paramount, and in which one's online reputation matters more than ever before, (11) the need to know what one's non-lawyer staff may be posting on social media is mission critical. Consider, for example, some recent cautionary tales. In early May 2020, lawyers at Dallas-based Thompson & Knight learned that the firm's document services manager, Kevin Bain, had made disturbing comments on Facebook related to his anger at retail businesses requiring shoppers to wear face masks during the pandemic. Referring to a local grocery store's policy, Bain posted that any business insisting that he wear a mask "will get told to kiss my Corona ass and will lose my business forever." (12) Following a series of threatening comments involving his handgun proficiency, Bain went on to say, "They have reached the limit. I have more power than they do... they just don't know it yet." (13)

      Thompson & Knight reacted swiftly to their employee's social media outburst, firing Bain for the "threatening and offensive" post. (14) The firm also released a statement, saying, "This post is a complete violation of the values of our firm, including our commitment to the health and safety of the communities we serve. We have terminated this individual's employment and notified the proper authorities about the post as a precaution." (15)

      And if a staff member posting threatening comments online is not troubling enough for lawyers, how about online conduct that threatens and "outs" witnesses or informants as "snitches," exposing them to intimidation, reprisals, or even death? That was the case with Tawanna Hilliard, a paralegal working at the U.S. Attorney's Office in New Jersey. (16) In August 2019, Hilliard was indicted on witness tampering, obstruction of justice, and conspiracy charges in Brooklyn federal court. (17) The paralegal allegedly used her position and official work computer at the United States Attorney's Office to help her son Tyquan, a member of the Bronx 5-9 Brims branch of the notorious Bloods street gang who was serving a ten-year prison sentence for robbery. (18) According to federal authorities, in 2016, Ms. Hilliard, a nine-year employee, used her work computer to help her son's gang find cooperating witnesses, as well as to obtain the personal information of a rival gang member whom she thought was "trying to jam [her] son up." (19) And in 2018, during the then-pending robbery case against her son, Hilliard allegedly posted a video on YouTube showing a post-arrest statement given by her son's co-defendant about the robbery in order to prove he was "snitching." (20) She allegedly titled the video "NYC Brim Gang Member Snitching Pt. 1," and the video's circulation led to the witness and his family receiving death threats from fellow Bloods gang members. (21)

      That video clip had been obtained by the U.S. Attorney's Office as discovery material in Tyquan Hilliard's case. (22) A search of the paralegal's home led to video interviews with the co-defendant and another accomplice being found on Hilliard's computer. (23) Investigators also recovered text messages from Ms. Hilliard in which she complained that the co-defendant was "giving up murders, victims, shooters, and all" and that her son "has no line of defense because his co-d told everything." (24) Hilliard pleaded not guilty and was ordered to wear an ankle monitor, stay off social media, and refrain from contact with her son and other gang members. (25) Hilliard's son had allegedly sent letters to the FBI and a senior Assistant U.S. Attorney in the Eastern District of New York threatening to upload more video clips of his co-defendant's statement in an attempt to put him in danger. (26)

   2. Courthouse Staff and Social Media

      Of course, lawyers are not the only ones who must be wary when it comes to the online behavior of their staff. Judges--including appellate judges--must be as well. In June 2020, the Stanislaus County (California) Superior Court was compelled to launch an internal investigation after a political tweet was posted to the court's official Twitter account. (27) The post was a re-tweet of a tweet originally made by One America News personality Alex Salvi, regarding a news item about a protester being injured during the removal of a Confederate statue in Portsmouth, Virginia. (28) The retweet attributed to the court's account featured the comment, "Some like their Karma instantly. I'll take mine in November. #Trump2020." (29) The court's account also included a "like" of a retweet by Fox News host Jeanine Pirro as well. (30)

      The court reacted quickly by deleting the post and posting an apology, along with a terse statement that the official account had been "compromised." (31) The following day, the court's Twitter account displayed a more detailed tweet, reading "Yesterday's tweet about race and partisan politics was unauthorized and completely contrary to the Court's mission to provide equal access to justice and serve the needs of our community with integrity, quality, and fairness. The Court sincerely apologizes for the post." (32) Later, the court's executive officer provided a statement indicating that an unnamed employee was responsible for the political tweet, and that an internal personnel investigation was ongoing. (33) The statement promised "appropriate action consistent with its personnel rules and applicable laws," and added that as a preventative measure, the court "imposed additional restrictions on access to its social media accounts." (34)

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