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RULE 1.6(A) CONFIDENTIALITY OF INFORMATION
A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless the client gives informed consent.
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RULE 1.6 CONFIDENTIALITY OF INFORMATION COMMENT
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
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HOW TO RESPOND TO ONLINE CLIENT REVIEWS?
Tsamis accepted a $1,500 fee even though she knew full well that a law in Illinois would prevent me from obtaining unemployment BENEFITS!!”
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ATTORNEY RESPONDED
I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”
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PUBLIC REPRIMAND
ATTORNEY’S BLOG POST
#127409 This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he's no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.
KRISTINE ANN PESHEK
60-DAY SUSPENSION
IN RE QUILLINAN, 20 DB RPTR. 288 (2006)
90 DAY SUSPENSION FOR POSTING CLIENT’S NAME ON
LISTSERV.
Listerv post likened to emailing editor of a newspaper or
participating in a call-in radio LOS ANGELES BAR ASSOCIATION OP. 514 (2006)
MARGARET SKINNER
SKINNER OPINION RELIED ON TWO OUT-OF-STATE
DECISIONS
“Proper attire for
trial?”
ATTORNEY’S FACEBOOK POST
ANYA CINTRON STERN
When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it give’s the appearance that he is not receiving a fair trial.
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ABA ARTICLE COMMENT ON ARTICLE ABOUT ANYA CINTRON STERN
I personally know the attorney and the sad part is she is a brilliant trial attorney. I can tell you, those of you who think this was stupid, watch out; this can happen to anyone!!! Social media is so prevalent nowadays that anyone can make a mistake. Who hasn’t commented about photographs of this or that introduced as evidence at a trial? This is not any different, especially with the younger generation who use social media as we used real social gatherings. Let him who is free of sin cast the first stone.
CYBER-RISK INSURANCE POLICIES ARE GROWING QUICKLY
Law firms today are responsible for massive amounts of electronic and nonelectronic information. This information represents significant liability exposure in the event of a security failure. Even if the failure doesn’t lead to an actual lawsuit, a firm may still need to deal with costs associated with notification, possible regulatory investigations, fines and penalties, forensic expenses, public relations expenses and more.”
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CHRIS ANDREWS, VICE PRESIDENT OF PROFESSIONAL LIABILITY AT AIG
LAWYER PHOTOSHOPPED CELEBRITY PHOTOS & POSTED TO HER FIRM WEBSITE
RULE 8.4(C) MISCONDUCT
A lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
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Sangary’s American dream has come true, as she has been able to achieve a point wherein now, in her thirties, Sangary is a prominent donor and philanthropist, supporting important social causes, who had recently received the email from President Obama with the subject line ‘I need your help today,’ asking Svitlana Sangary for an additional donation…”
SIX MONTH SUSPENSION
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Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”
Aaron Brockler former Cuyahoga County, Ohio, Prosecutor
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While it is the law that when the possibility of deception is . . . self-evident a state is not required to produce evidence to justify its imposition of a disclosure requirement, we cannot allow rote invocation of the words ‘potentially misleading’ to supplant the burden to demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”
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DWYER V. CAPPELL, 762 F.3D 275 (3D CIR. 2014) (QUOTATIONS OMITTED)
WHAT ABOUT THE FIRST AMENDMENT?
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LAW FIRM BLOG POST
Government regulation of corporate America’s disregard of consumer safety has been lackadaisical at best and when it comes to ‘tort reform’ there is a single winner: the insurance industry.”
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SEARCY DENNEY SCAROLA BARNHART & SHIPLEY (2015)
HORACE HUNTER (VIRGINIA 2013)
DOES IT MATTER IF IT IS A PUBLIC RECORD?
“In 1972, legal ethics boiled down to: ‘Don’t lie, don’t cheat, don’t steal and don’t advertise,’ ” said John W. Dean III, one of the lawyers brought down by Watergate with President Richard M. Nixon, during a 2012 interview with the ABA Journal for an article about the legacy of the scandal.
RULE 7.1 (F) COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site.
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BLOGSCALIFORNIA PROPOSED OPINION ADDRESSES ATTORNEY
BLOGS TO BE TREATED AS ADVERTISEMENTS
GHOST BLOGGING?
RULE 7.1 (K) COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
All advertisements shall be pre-approved by the lawyer or law firm.
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RULE 8.4(C) MISCONDUCT
A lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
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BUT WHAT ABOUT TWEETS?
RULE 7.1 (F) COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
Every advertisement …shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site.
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CALIFORNIA’S PROPOSED OPINION 10-0001
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.
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During the trial of a case a lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.
RULE 3.5(b) MAINTAINING AND PRESERVING THE IMPARTIALITY OF TRIBUNALS AND JURORS
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NEW YORK CITY BAR OP. 2012-2
It is incumbent upon the attorney to understand the functionality of any social media use for juror research. If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation of Rule 3.5.
“Advisory Opinion
CAN’T WE JUST IGNORE SOCIAL MEDIA ALTOGETHER?
TWEETED DURING A MURDER TRIAL
Choices to be made. Hearts to be broken. We each define the great line.”
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Because of the very nature of Twitter as an on online social media site, [the juror's] tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”
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ERICKSON DIMAS-MARTINEZ V. STATE, 2011 ARK. 515 (ARK. DEC. 8, 2011)
JUSTICE DONALD CORBIN ARKANSAS STATE SUP CT.
Divulged confidential information about the case
Communicated or attempted to communicate directly with participants in the case (e.g., witnesses, attorneys, judges)
Revealed elements of the deliberation process
2013
6
3
2
“Friended” or intended to “friend” participants in the case
2011
3
0
0
3
Ways in which jurors used social media during a trial or deliberation
Federal Judicial Center data (2014).
Reported by another juror
Reported by an attorney
Reported by court staff
2013
13
8
Reported by one of the parties
2011
5
3
Ways in which judges learned about social media use by jurors
Federal Judicial Center data (2014).
Arose during post-trial motions
12
6
5
The Supreme Court of Arkansas removed a thirteen-year tenured, Faulkner County Circuit Judge and barred him from ever returning to the bench.
“GEAUXJUDGE”(Screen names may not protect you)
PROSECUTORS
Loyalty and independent judgment are essential elements in the lawyer's relationship to a client.
RULE 1.7 COMMENT [1] CONFLICTS ON INTERESTS
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The system is corrupt. The Supreme Court in Pennsylvania is corrupt and everybody knows it.”
Don Bailey's law license suspended for 5 years in Pennsylvania (2012).
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RULE 8.2(A) JUDICIAL AND LEGAL OFFICIALS
A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory officer or of a candidate for election or appointment to judicial office.
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Email to bankruptcy judge, calling him a “bully and a clown.”
William Caldwell Hancock’s Tennessee license to practice law was suspended for 30 days (September 3, 2014).
