A number of ethics opinions have been released this year which provide some guidance for lawyers on what is permitted (and prohibited) online. First, ABA Opinion 466, released in April 2014, discusses what lawyers may and may not do when reviewing jurors’ internet presence. Next, two opinions out of Pennsylvania provide Pennsylvania lawyers with some guidelines about responding to online reviews (Pennsylvania Bar Association Formal Opinion 2014-200) and advising clients about Facebook (Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5).
ABA Opinion 466
Lawyers (and those in their firms) are using social media as an investigative tool to learn more about adversaries, parties, and jurors. The ABA has determined that lawyers may use the internet to learn more about jurors by viewing the parts of their online presence that is available to the public, but the lawyers (or those working on their behalf) cannot “communicate directly or through another with a juror or potential juror.”
In other words, going online to view publicly available information is permitted, but inviting jurors to connect, sending “friend” requests or following jurors is not. The ABA opinion specifically noted that if the platform automatically notifies the juror that someone has looked at their online information (as opposed to the lawyer or their agent communicating directly with the juror), no violation has occurred. One example where this might occur is the “Who’s Viewed Your Profile” feature on LinkedIn; if a lawyer or someone on their behalf views a juror’s LinkedIn profile but does not communicate with them directly, LinkedIn might show the lawyer’s name under the juror’s list of people who have viewed the juror’s Profile.
But not all jurisdictions agree on whether this kind of automatic notification made by the service rather than initiated by the user is a violation of the Rules. For example, The New York County Lawyers’ Association Committee on Professional Ethics in Formal Opinion 743 stated that, “If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites, the contact may well consist of an impermissible communication, as it might tend to influence the juror’s conduct with respect to the trial.”
Pennsylvania Bar Association Opinion 2014-200, Lawyer’s Response to Client’s Negative Online Review
As I discussed in my most recent Simple Steps column in the ABA’s Law Practice Magazine, Managing Your Reputation in an Online World, online reviews are becoming more common not just for businesses like restaurants, but also for lawyers. On occasion, those online review sites such as Yelp or Avvo can be places for unhappy clients to vent. Lawyers need to be cautious when responding to any such reviews, and must be particularly vigilant that they do not breach client confidentiality. This is the issue that was raised in Pennsylvania Bar Association Opinion 2014-200.
The opinion discusses Pennsylvania Rules of Professional Conduct Rule 1.6, Confidentiality, and the “self-defense” exception to the Rule which can be found at 1.6(c)(4) (which is identical to 1.6(b)(5) in the ABA Model Rules). That exception allows a lawyer to reveal some confidential information to the extent the lawyer thinks it is necessary 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 or disciplinary proceeding against the lawyer; or to respond to allegations in any proceeding concerning the lawyer‘s representation of the client.
Clearly, an online review of the attorney’s work posted by a client is not a criminal charge, civil claim or disciplinary proceeding. But is it a “controversy” that would permit the lawyer to reveal some confidential information in order to protect their reputation? The answer may differ depending upon your jurisdiction (see State Bar of Arizona Opinion 93-02, and San Francisco Bar Association Opinion 2014-1, for example).
The Pennsylvania Bar surveyed disciplinary proceedings and ethics opinions from around the country dealing with this issue, including a New Hampshire Bar Association opinion reported in the New Hampshire Bar News in February 2014, which found that a lawyer could provide a limited response to a client’s claims online, but could not make specific disclosures, and a Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion from December 2012 saying that a lawyer can publicly respond to online comments, but cannot reveal confidential information, cannot injure the party (client) in the matter in question, and must use restraint in commenting.
The Pennsylvania Bar concluded that:
While it is understandable that a lawyer would want to respond to a client’s negative online review about the lawyer’s representation, the lawyer’s responsibilities to keep confidential all information relating to the representation of a client, even an ungrateful client, must constrain the lawyer. We conclude that a lawyer cannot reveal client confidential information in a response to a client’s negative online review absent the client’s informed consent.
Responding to negative online reviews is appropriate, but the ethics rules will not permit the attorney to reveal client confidences, which means most responses to online reviews will not be able to address the substance of a client’s claims against the attorney or allow the attorney to reveal the client’s role in contributing to the outcome of the matter. For more on responding to online reviews, see my Simple Steps column.
Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5
Finally, earlier this month, the Philadelphia Bar Association issued an opinion dealing specifically with what lawyers can and cannot do when advising clients about what to do with their Facebook accounts. While the question posed to the committee involved Facebook specifically, the opinion noted that the same rules would apply to any other social media accounts.
According to the opinion, it is permissible for lawyers to instruct their clients to change the privacy settings on their account to restrict what can be seen by others, but it is not permissible to advise clients to delete information or photographs that were previously posted to these accounts.
In addition, if a discovery request is served, the lawyer must obtain copies of photographs, links or other content posted by the client on the client's Facebook page in order to comply with that request, and must also make reasonable efforts to obtain any photographs, links or other content that the lawyer knows about, but that the lawyer believes the client failed to produce.
The opinion cites to the Commercial and Federal Litigation Section of the New York State Bar Association’s "Social Media Guidelines," which state in part that:
A lawyer may advise a client as to what content may be maintained or made private on her social media account, as well as to what content may be "taken down" or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information.
Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve.
The Philadelphia Bar Association Professional Guidance Committee adopted the above recommendations, noting that they were consistent with the ethical prohibition against destroying documents or data that might have potential evidentiary value.
The Philadelphia opinion went on to say that a lawyer may instruct a client to delete information that may be damaging from the client's page, but must preserve the information in the event it should prove to be relevant and discoverable.
It is likely that more jurisdictions will release ethics opinions specifically addressing activity that takes place online as lawyers, jurors, and clients use these tools more often and as additional questions arise.