Breaking News: Florida Joins the Conversation on Advising Clients to “Clean Up” Social Media

The Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations that an attorney has when advising a client to “clean up” the client’s social media pages before litigation is filed. Although there is case law that already addresses the issues of discovery and spoliation as they pertain to social media, the committee distinguished that these cases have only dealt with the issues of discovery and spoliation after litigation had commenced. Here, the committee is tackling the question of what an attorney may ethically advise in the pre-litigation stage.

The committee announced its agreement with the New York County Lawyers Association’s NYCLA Ethics Opinion 745 (2013), which stated that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages so that they are not publicly accessible. The committee also agreed that a lawyer may advise a client to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, so long as: (1) the removal does not violate any substantive law regarding preservation and/or spoliation of evidence; and (2) an appropriate record of the social media information is preserved if the information is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

Finally, the committee turned its attention to the Florida Rules of Professional Conduct that are implicated on this issue. It pointed out that the general obligation of competence under Rule 4-1.1 may require an attorney “to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding the preservation of evidence, regardless of the privacy settings” (Emphasis Added). And it found that if a client asks an attorney about removing information from his or her social media pages, the attorney must adhere to Rule 4-3.4(a), which states that a lawyer must not “unlawfully obstruct another party’s access to evidence . . . that a lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding,” and that determining what information is relevant is a factual question to be decided on a case-by-case basis.

NY finds Self-Defense Exception to Confidentiality Not Applicable to Bad Publicity

New York Ethics Opinion 1032 responded in the negative to an inquiry posed by a firm wanting to rebut accusations posted by a former client about the firm’s services on a lawyer-rating website. The Opinion grappled with the issue of whether a lawyer could rely on the self-defense exception to the duty of confidentiality set forth in Rule 1.6, incorporated by Rule 1.9(c) as to former clients. Rule 1.6(b)(5)(i) says that a lawyer ‘may reveal or use confidential information to the extent that the lawyer reasonably believes necessary … to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct’ to disclose the former client’s confidential information in responding to a negative web posting, even though there is no actual or threatened proceeding against the lawyer.”

The Opinion found the above exception not applicable and concluded that, “[a] lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”

Click here for the full Opinion. For a related Legal Ethics in Motion blog post, click here.

When is a Blawg Subject to the Attorney Advertising Rules?

The State Bar of California’s Standing Committee on Professional Responsibility and Conduct, recently released a draft of an interim opinion that serves to address under what circumstances blogging by an attorney is considered a form of advertisement that may be subject to the requirements and restrictions of the Rules of Professional Conduct.

California attorneys are required to abide by Rule 1-400 of the Rules of Professional Conduct of the State Bar of California, which primarily governs attorney advertising.  The Committee decided that attorneys’ blogs are subject to the requirements and restrictions of Rule 1-400 and the related provisions of the Business and Professions Code if “the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through a description of the attorney’s legal practices and successes in such a manner that the attorney’s availability for professional employment is evident.”

Furthermore, the Committee contended that a blog that appears on an attorney’s or a law firm’s professional website “is subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.”

However, the Committee found that attorneys’ non-legal blogs are not subject to the rules regulating attorney advertising even if the blog contains a link to the attorney or law firm’s professional website, provided the attorney author does not actively use the blog to solicit business as an attorney.

Visit here to view a copy of the Formal Opinion Interim #12-0006.

Prosecutors’ Letterhead: Debt Collectors’ Unethical Weapon

Prosecutors’ offices should not contract with debt collection companies to use prosecutor letterhead to create and mail collection demand letters. According to the American Bar Association’s Formal Opinion 469, prosecutors involved in this practice violate Model Rules of Professional Conduct 8.4(c) and 5.5(a).

 Prosecutors violate Rule 8.4(c) by “deploying the apparent authority of a prosecutor to intimidate an individual. [The letters written on prosecutors’ letterhead] carry with them the implication that the prosecutor or associates in the prosecutor’s office have reviewed the facts and found that a crime has been committed and criminal prosecution is warranted. To create such a false impression violates Rule 8.4(c).” Additionally, prosecutors violate Rule 5.5(a) because the debt collection companies use the letterhead to send letters threatening prosecution without any review by prosecutors or staff lawyers to determine whether a crime was actually committed. Thus, the prosecutors aid and abet the unauthorized practice of law.

To avoid ethical violations, prosecutors’ offices should simply not allow others to use prosecutor letterhead.

Click here to read the ABA Journal article discussing the opinion.

Florida Bar Repeals Guidelines on Advertising Past Results After Declared Unconstitutional

The Florida Bar advertising guidelines, which were revised in February 2014, stated “indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information” and therefore the Bar indicated that it was not likely to approve any such ads even if the ads included the Bar’s required disclaimers. The Bar’s position prompted a lawsuit after the Bar declared one attorney’s television ads, which the Bar had initially approved, unacceptable.

A federal judge agreed with the attorney and issued an injunction against enforcing the guidelines finding the guidelines to be a violation of the First Amendment.  (Case No. 14-CIV-20786-BLOOM/Valle). In response, The Florida Bar has repealed the past results guidelines pertaining to the use of past results in indoor and outdoor display, radio, and television advertising. The action was a policy decision and does not amend the advertising regulations, but rather the interpretation of the regulations as reflected in the guidelines.

Interestingly, the Bar’s underlying goal in adopting the guidelines was to protect the public; however, a new survey, conducted by Frank N. Magid and Associates on behalf of the Bar, found that the public is not easily misled by attorney advertising past results. In fact, the majority of those surveyed indicated that they are skeptical of the results advertised and not likely to expect the same results nor even recommend or retain a firm based upon that type of advertisement. To read more about the survey results click here.

Though the Bar’s actions do not change the latest version of the advertising rules that were adopted by the Supreme Court in January 2013, some believe that the lawsuit has moved the Bar another step in the right direction. For more about the Bar’s own considerations about its next steps click here.

Three Strikes! Lawyer Lacking Mindful Boundaries is Suspended for Facebook Message

A Kansas attorney has been suspended for 6 months for his inappropriate Facebook message to the unrepresented biological mother in a termination of parental rights case in which the lawyer represented the biological father. He urged the mother to reconsider her decision to relinquish her rights in a heavy-handed Facebook message that the lawyer conceded  that “[i]n hindsight, it was a communication that was hastily drafted and sent without proper revision.”

The hearing panel characterized the message as “emotional blackmail” and a “bullying  tactic” that directly reflects on the attorney’s fitness to practice law thereby warranting a 60 day suspension.

The Kansas Supreme Court agreed that a suspension is appropriate, but ordered a 6 month suspension.

The court found, “Despite the respondent’s abysmal attitude, absent the prior discipline, the hearing panel may have been inclined to recommend a censure to be published in the Kansas Reports. However, the misconduct in this case occurred just a few short months after the respondent was strongly admonished by the previous hearing panel. The respondent’s misconduct in all three of the attorney disciplinary cases is linked by the respondent’s overreaching approach and failure to recognize reasonable boundaries.” (emphasis added)

The court will consider reinstatement contingent upon the attorney’s ability to demonstrate that he understands the gravity of his conduct and that he has completed an anger management course and any other therapy that is recommended by a physical or mental healthcare professional.

This case provides another troubling reminder that lawyers who fail to pause and consider the repercussions of their actions, especially on social media, often trip on ethical land mines that damage their reputations and their careers.

Keep Your Praise Private

A prominent patent attorney in California forwarded a congratulatory email he received from a judge of the U.S. Court of Appeals for the Federal Circuit to more than seventy individuals, over half of which were clients and prospective clients.  Along with the forwarded email, wherein the then-Chief Judge referred to the attorney as “my friend” and said, “[i]n sum, I was really proud to be your friend today,” the attorney included a message soliciting business.  The attorney urged recipients to keep his law firm in mind when considering the firm for their Federal Circuit needs.

The Federal Circuit responded classifying the attorney’s action as  “conduct unbecoming a member of the bar,” which is prohibited by Rule 46 of the Federal Rules of Appellate Procedure.  In response, the attorney argued the First Amendment protected his conduct.

In an en banc ruling on November 5th, the court contended that the attorney should have exercised better discretion by not disseminating the judge’s email because the email, in conjunction with the attorney’s message, implied “a special relationship with then-Chief Judge Rader and the Federal Circuit.”

The en banc panel held that the attorney was in violation of Federal Rule 46, as well as Rule 8.4(e) of the Model Rules, which states it is professional misconduct for an attorney to “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.”

The attorney was publically reprimanded, and the panel stated that it plans to bring the matter to the California State Bar’s attention for its consideration on a separate potential disciplinary issue involving “the exchange of items of value between [the attorney] and then-Chief Judge Rader.”

Click here to read more.