Recent Title IX Case Highlights Social Media Remains Minefield Of Liability

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.

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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.

Tim Soefje - 04--09-18Timothy 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 tsoefje@realclearcounsel.com.

Autumn Keefer - 07-13-18Autumn 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 akeefer@realclearcounsel.com.

Top 5 Ways Social Media Will Get You Disbarred

Social media for lawyers has become the legal equivalent of playing with fire. Unfortunately, far too many lawyers and law firms wade into using social media lacking even a cursory understanding of the applicable ethical rules in their jurisdiction.

Here are the Top 5 ways social media can get you disbarred, disciplined or fined.

1. BARRATRY

Ambulance chasing has moved to the internet. A lawyer commits barratry when he solicits professional employment arising out of a particular event or series of events from anyone who has not sought the lawyer’s advice social-3064515_1920or with whom the lawyer has no family, or past or present attorney-client relationship. ABA Model Rules on Professional Conduct 7.3.

For example, assume a lawyer on Facebook sees an old high school friend post she has just been injured in a car wreck and is being transported to the hospital. Without thinking, the attorney posts: “Praying for you. If you need my help with filing a claim, give me a call.” What likely was a genuine desire to help an old friend has become clear case of barratry.

 

Imagine a lawyer sees a friend’s tweet expressing frustration about his attorney’s inability to resolve a contested probate matter quickly. The lawyer tweets back: “Sounds to be me like you have a need for speed. #TopGunForHire.” The responding attorney may have only thought he was being cleaver. Unfortunately, he also has committed barratry. The tweet also could subject the lawyer to discipline for communicating with a person the lawyer knows is represented by counsel as discussed further below. ABA Model Rule 4.2.

Lawyers are subject to disbarment or severe discipline for acts of barratry, which also has been a crime in most states for some time. See, Texas Penal Code 38.12. In addition, lawyers who commit barratry are subject to forfeiting their hard-earned attorney fees even after a case is concluded at least in most states.

Recently, some states are enacting laws that create civil causes of actions against the attorney. These barratry statutes typically permit the alleged victim to recover substantial, statutory penalties and an award of attorney fees. See, Texas Government Code, §82.065 et. seq. In Texas at least, a lawyer may not require a client to sign an engagement agreement that waives the client’s right to bring a claim for barratry under the statute. (Texas Opinion 637).

Unfortunately, an entire cottage industry of lawyers filing civil barratry claims now has sprung up in some states. Almost every time, the lawyer has a simultaneous grievance claim filed against him with the state bar.

As these claims grow in number, some members of the defense bar and legal industry analysts are left wondering whether at least some of these civil barratry claims were themselves unlawfully solicited, and in some cases fabricated entirely. Regardless, with tens of thousands of dollars available per claim, lawyer can be assured their social media accounts will be trolled for evidence they have unlawfully solicited anyone who chooses to file one of these civil barratry claims.

2. LACK OF CANDOR TOWARD THE TRIBUNAL

As trial judges and other lawyers become more savvy about social media, unethical lawyers will find themselves held to answer for false statements made to the court or to others. ABA Model Rules 3.3 and 4.1.

For example, a lawyer who chooses to lie to a judge or opposing counsel to obtain a continuance by claiming to be in trial or in a deposition out-of-town in another proceeding should be careful to turn off his Facebook location setting or insure his wife’s Instagram photos don’t reveal his Las Vegas getaway.

As early as 2009, one Texas lawyer learned how dangerous social media can be. The lawyer sought a continuance on the pretext her father had died.  The social media savvy judge, however, used the lawyer’s social media accounts to uncover the lawyer had posted photos of herself drinking and partying instead of mourning her father’s death.

3. UNINTENDED ATTORNEY-CLIENT RELATIONSHIP

Social media is about engaging with other people. Lawyers, however, are not like other people.

In general, no lawyer should engage with anyone on social media about a specific legal matter unless the lawyer intends to create an attorney-client, or at minimum a “prospective client” relationship. ABA Model Rule 1.18.

The Restatement (Third) of the Law Governing Lawyers, Section 14 provides a two-part test to create an attorney-client relationship.

First, a person manifests an intent that a lawyer provide legal services. Second, the lawyer either; (a) manifests consent, or (b) fails to manifest lack of consent and knows or reasonably should know the person reasonably relied on the lawyer to provide the services.

All the obligations of the attorney-client relationship such as a duty of competency, confidentiality, competency, and diligence are imposed on an attorney who even unintentionally enters into an attorney-client or “prospective client” relationship. See, ABA Model Rule 1.7. Under ABA Model Rule 1.10, even an inadvertent client relationship  can be imputed to the lawyer’s firm.

In other words, an attorney who engages a friend or follower on Facebook or Twitter should follow the same rules that would apply in an in-office setting.

The lawyer should clearly disclaim that any attorney-client relationship exists until an engagement agreement is signed by both parties. Additionally, the lawyer should clearly manifest his lack of consent to an attorney-client relationship after deciding to reject the client.

4. PROHIBITED COMMUNICATIONS

Social media can be a minefield of potential ethical violations for any lawyer who ventures into communications with anyone about a specific legal matter.

Sending a friend request or invitation to connect to the opposing sides of a case for the purpose of obtaining access to the person’s social media content will subject a lawyer to discipline, especially where the lawyer knows the person is represented by counsel. ABA Model Rule 4.2.

Lawyers also should proceed with caution before connecting via social media with a witness in a specific matter. Some jurisdictions require the lawyer to affirmatively disclose to the witness the reason for the lawyer’s attempt to connect via social media.

In other states, the lawyer is prohibited from using false pretenses, dishonesty, or an alias to gain access the other individual’s social media content. Kentucky (Op. KBA E-434), New York City (Op. 2010-2), New York State (Op. 843), and Oregon (Op. 2013-189).

The “real-time” nature of social media subjects uninformed lawyers to unintentionally disclosing confidential client communications. ABA Model Rule 1.9. For example, one lawyer forfeited a substantial settlement when his daughter violated the confidentiality term in a settlement agreement by posting details about the settlement on Facebook.

A public defender was suspended for 60 days after posting on social media that his client may have committed perjury. In re Peshek, M.R. 23794 (Ill. May 18, 2010). Even a nonspecific tweet such as, “just had a client lie on the stand for the first time,” could subject a lawyer to discipline if lawyer’s location or time of the tweet revealed the particular client’s identity.

5. UNAUTHORIZED ADVERTISEMENT

Most lawyers and law firms wouldn’t dream of publishing an advertisement in a newspaper or on television without submitting it to their state bar association for approval. A surprising number of lawyers, however, remain unaware that social media landing pages can be advertisements subject to the local disciplinary rules.

A lawyer’s profiles and home pages on social media sites such as Facebook, Twitter, and LinkedIn can be advertisements where the landing page is generally available to the public. As such, lawyers must comply with their state’s version of the ABA Model Rules 7.1, 7.2, 7.3 and 7.4.

The California state bar concluded that the advertising rules do not come into play if a lawyer’s social media post merely announces a victory or recent publication without suggesting that the lawyer is in the market for new clients. But when a message expresses the lawyer’s willingness to be hired, the advertising rules apply. California (Op. 2012-186).

The California committee concluded that a Facebook post “Case finally over. Unanimous verdict! Celebrating tonight” did not constitute an advertisement because it was not an offer or message about the attorney’s availability for employment. Id.

The panel, however, concluded that when the lawyer posted. “Won a million dollar verdict. Tell your friends to check out my website,” the message asked readers to tell others to look at her website so that they may consider hiring her, and therefore, was subject to the state’s rules on lawyer’s advertising. Id.

Lawyers who chose to use social media for the purpose of advertising must comply with any rules requiring submission of such advertising to any Advertising Review Committee. See, Texas Disciplinary Rules of Professional Conduct, Rule 7.07. Every state’s rules are unique.

The California panel made clear that California lawyers were required to comply regardless of how difficult it may be to comply.

“The restrictions imposed by the professional responsibility rules and standards governing attorney advertising are not relaxed merely because such compliance might be more difficult or awkward in a social media setting.”

California (Op. 2012-186).

Some states, however, have enacted rules that don’t require submitting to an advertising review committee any social media that contains only basic information.

For example, in Texas a lawyer or law firm is not required to submit social media that only includes biographical information, sponsorship of certain activities, or where the communication was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain. Texas Disciplinary Rules of Professional Conduct 7.07(e).

For example, a law firm would not be required to submit their social media posts, encouraging the public to follow their Facebook page, LinkedIn page, or Twitter account.

CONCLUSION

Social media has become pervasive in most lawyers’ every day and professional lives. At least one state’s bar association already has concluded that ABA Model Rule 1.1 requires lawyers to have “a basic knowledge of how social media websites work,” as well as the ability to advise clients about the legal ramifications of using the sites. Pennsylvania (Op. 2014-300).

As a result, best risk management practice suggests that every lawyer and law firm should implement a strong, written social media policy into their firm’s employee handbooks and regularly train their employees on the ethical rules that apply to lawyers and law firms. And, every lawyer should developing a personal, working knowledge of how social media works to avoid the ethical traps waiting for them in cyberspace.

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Tim Soefje Headshot 01Timothy B. Soefje is Managing Member and head of the professional liability section at the boutique firm of Seltzer │Chadwick │Soefje, PLLC. in Dallas, Texas. He is admitted in both Texas and Oklahoma. Follow him on Twitter at @TimSoefje. For more information, visit at www.realclearcounsel.com or contact Mr. Soefje at tsoefje@realclearcounsel.com