Social media continues to be a minefield of professional liability as more and more attorneys come to the defense of their clients on social media without a full understanding of the risks involved.
We have blogged before on the perils of social media, but a recent Title IX case provides an excellent example of what can happen when a well-intention attorney, hoping to protect his client’s interest, posts online to set the record straight only to watch the social media posts go viral with vicious attacks on his client and his own professionalism.
The case involved a Title IX complaint between two students at Texas A&M University. The university came under fire after the female student tweeted out a screenshot of an email from the Title IX Coordinator that informed her the university was going to reinstate to both the swim team and the university the male student she accused of sexually assaulting her.
Within hours, the male student’s lawyer took to Facebook with the intent to set the record straight from his client’s perspective, including disclosure of details about the case uncovered during the investigation that previously had not been made widely public.
The attorney’s social media posts exploded nationally into a focal point for the Title IX #MeToo movement.
The attorney immediately came under fire about whether he disclosed confidential information in the Title IX proceeding, and whether his client granted him permission to engage in the social media posts and disclose the facts of the underlying investigations.
In the latest twist to the case, the attorney on behalf of his client last month filed a Title IX discrimination lawsuit against Texas A&M University for gender bias. Whether the attorney’s social media posts will positively or negatively affect the outcome of that lawsuit remains to be seen.
An attorney who violates the attorney-client privilege or discloses confidential information about the client can receive in sever sanctions, including suspension or even disbarment.
In In Re Peshek, an Illinois Supreme Court case decided in 2010, the court suspended an assistant public defender from practice for 60 days for blogging about clients on his social media page and implying in one post that a client may have committed perjury.
Conversely, in 2013, the Virginia Supreme Court held in Hunter v. Virginia State Bar that confidentiality obligations have limits when weighed against First Amendment constitutional protections owed to a lawyer.
In Hunter, the court held that even though the blog posts were considered commercial speech, the Virginia State Bar could not prohibit the lawyer from posting non-privileged information about clients and former clients without the clients’ consent where:
- the information related to closed cases; and
- the information was publicly available from court records and, therefore, the lawyer was free, like any other citizen, to disclose what actually transpired in the courtroom.
The principle of confidentiality is set out in the legal ethics rules. ABA Model Rule 1.6 states:
“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. . . This contributes to the trust that is the hallmark of the client-lawyer relationship.”
Any violation of these rules will impose sanctions on the attorney involved.
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) 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;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
On the other hand, the attorney-client privilege, sometimes referred to as the testimonial privilege, is a concept from the law of evidence and is present in the common law or statutes of the fifty states. The client, acting through the lawyer, may claim the privilege.
As stated in Model Rule 1.6(c)(3): “The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”
The attorney-client privilege protects the communications between the client and lawyer and only pertains to information shared during the attorney-client working relationship. Therefore, all the information shared between the attorney and the client does not necessarily get placed under attorney-client privilege even if it has been told to the lawyer.
By contrast, the ethical duty of client-lawyer confidentiality is extensive and finite. The ethical duty of an attorney not only applies to matters communicated in confidence by the client but also to all information relating to the situation.
In other words, even though a court determines that certain information is not covered by the attorney-client privilege, it still may be covered by the lawyer’s ethical duty of confidentiality. According to Rule 1.6 (c)(20), “confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client”.
Along with the basic principle of maintaining the privacy of client information, “a key precept of ethically maintaining confidentiality is that the information not be used to the detriment of the client, but rather only to advance the client’s interests. Even information gained about the client after the representation has concluded is to be kept confidential.”
Once information has become generally known, however, not just known by some few others, it loses the protection of lawyer confidentiality.
The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.
Too many attorneys continue to wade into the world of social media with little experience or understanding of how their best intentions can suddenly and unexpectedly explode virally, harming their client’s interest and placing their own licenses and legal future in jeopardy.
No lawyer should ever post on social media about their client or client’s case without first obtaining written permission from the client to do so. Every attorney also should generally not proceed until setting out in writing to the client a clear strategy why social media is a recommended strategy. A failure to do so could unexpectedly subject to the attorney to serious disciplinary consequences.
Timothy B. Soefje is the Managing Member and head of the professional liability and construction defect group at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at email@example.com.
Autumn Keefer is a law clerk with the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. She will enroll at Southern Methodist University School of Law in the fall. Ms. Keefer holds a Masters Of Legal Studies from Texas State University. For more information, visit us at www.realclearcounsel.com or contact her at firstname.lastname@example.org.