Can you guide me on something regarding settlement confidentiality agreements and social media? I am assuming that if I use social media to talk about a settlement without mentioning names, I am OK. True?
No, not necessarily true -- particularly where there is a confidentiality agreement in place!
The marketing director gave me two examples of proposed posts, similar to the ones below:
Just settled $2.5 million dollar case for failure to diagnose breast cancer.
XYZ Law Firm has settled a case for $3.5 million dollars for a 49-year old Any County woman whose doctors failed to diagnose a blood clot which resulted in a stroke.
I wasn't given any information about the confidentiality agreements or what they contained, and I have no intention of providing legal advice with respect to these issues, but posts like these do raise potential ethics questions, as well as legal questions.
For example, in February of this year, the Third District Court of Appeal in Florida, in Gulliver Schools, Inc. v. Snay found that a confidentiality agreement had been violated where Snay's daughter posted on social media that her parents had won the case against the school. In that case, the confidentiality agreement prohibited the parties from disclosing the existence or terms of the agreement. Technically, Snay violated the agreement by telling his daughter about it, but it was her social media post that brought it to light.
While the proposed posts sent to me by the marketing director don't contain the names of the parties involved, giving details such as the county in which the plaintiff resides (likely the county where the suit was brought), age of the plaintiff and amount of the settlement might allow others to use public information to find the names of the parties, and might violate the confidentiality agreement by disclosing terms.
Ethics and Disclaimers
Putting any confidentiality agreement aside, these social media posts may very well violate ethical rules, even if it is otherwise legally permitted. In many jurisdictions (including the one in which this firm practices), any posts about results would need to be accompanied by a disclaimer stating that prior results do not guarantee a similar outcome.
Further, there was no indication by the marketing director that their client had consented to the firm disclosing information about their case, which may, again, be required under ethical rules.
ABA Model Rule 1.6 limits what a lawyer can say about the lawyer's own cases and clients. It provides:
(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 in order to carry out the representation or the disclosure is permitted by paragraph (b).
Posting about clients online can be risky. If the information is in the public domain and/or the lawyer or firm has done their ethics homework and includes the required disclaimers, obtains consents and follows other rules, there may not be trouble. And posting some results on law firm websites may make sense; they can help to demonstrate the kinds of cases the lawyer or law firm handles and the fact that they have knowledge or experience with specific issues or problems.
But social media posts are generally limited in length and don't lend themselves to the kinds of disclaimers that might be required. And there is a real question about whether these kinds of posts are actually effective.
Indeed, the real question may be, "Is this the way lawyers should be using social media?"
Social Media Done Right
While more and more law firms are embracing social media, they still don't seem to "get" that social media - even platforms like LinkedIn that are all about business - are not primarily meant for promotional purposes. People will tune out if all of your posts say, "Look at me!" or "My law firm is the best! Aren't we wonderful?!"
Social media is about providing relevant and valuable information to your audience, whether your audience consists of clients, potential clients, referral sources, colleagues journalists or others, and then engaging with those individuals to build relationships. No one likes to be around the person who talks about themselves all of the time at a cocktail party or networking event. It's the same online. There's a time and a place for everything, and social media (particularly certain platforms) isn't always the place for these kinds of 'announcements.'
Instead of focusing on themselves, lawyers should think about how their social media presence can provide value to the audiences they're trying to reach.