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Attorney discipline and the social media bugaboo

I greatly admire the South Carolina Office of Disciplinary Counsel (ODC) but I wish someone would take them to task for their constant fear mongering over attorney discipline through the use of social media.  One cannot attend any legal seminar with ODC presenting in which there isn’t a parade of horror stories about attorneys disciplined due to their use of social media.  Evidently ODC has been presenting at Bridge the Gap, South Carolina’s program for soon-to-be-licensed attorneys, scaring the newbys with tales of woe for those who market themselves through social media.  I know newly licensed attorneys who are afraid to have a Facebook presence because of ODC’s scare tactics.

Yet the examples I hear from ODC are totally irrelevant to the issue of social media as a cause of the discipline.  When I hear a tale of an attorney who was disciplined for telling a judge she needed a continuance to care for an ailing relative and who is then found posting on her Facebook page about the great time she’s having in Cancun, I don’t think “here’s an attorney who got disciplined for using Facebook.” Instead, I think “here’s an attorney who got disciplined for lying to a judge.”  Is anyone shocked that lying to a judge about a court matter is a basis for discipline?  In these circumstances, social media’s just a new way of getting caught.  Frankly, if attorneys are stupid enough to lie to the court and then stupid enough to post evidence of their lie in social media sites, I say excellent: the law functions better if we don’t have to work with dishonest attorneys.

Another example I sometimes hear about are attorneys and clients discussing their case in a social media website.  If a client is foolish enough to post confidential information about his or her case to what I assume that client understands is a public site that certainly doesn’t help the case, but I have not heard about an attorney being disciplined for that.  And if an attorney is stupid enough to post confidential information about a client’s case on a social media site–well, there’s a long history of attorney discipline for revealing client confidences that has nothing to do with social networking sites.

Certainly social networking sites make it easy to blur the distinction between communications that are personal and business, formal and casual.  E-mail, text messages, instant messages, Facebook, Twitter and word press all contribute to this blurring.   If ODC would remind and warn attorneys that this blurring can lead to ethics problems, they would be doing the bar a service.  However, there is nothing new in the way attorneys are being disciplined from their use of social media that is inherent in the use of social media.

Last year an attorney was disciplined, in part, for brandishing a gun.  By the ODC logic regarding social media, the problem wouldn’t be the attorney’s behavior; it was owning a gun.  I would relish observing the reaction of our state bar to the ODC warning us not to own guns.  It is the action, not the medium for the action, that remains a disciplinary issue.

There is a feared exception to my belief that there is nothing inherent in social networking that creates disciplinary issues: client endorsements.  There is a belief (which ODC contends is inaccurate) that clients merely posting favorable opinions of their attorneys on social networking sites is a violation of the rule of professional conduct prohibiting client endorsements.   See South Carolina Ethics Advisory Opinion 09-10.  Rule 7.1(d) of the South Carolina Rules of Professional Conduct prohibit attorney communications regarding services that “contains a testimonial.”  Rules 7.1 and 7.2 contain other limitation on attorney communications with the public regarding their services.

A client posting a favorable opinion about an attorney on a third-party social media web site is not the attorney’s communication; it’s the client’s.  Could the ODC force a third-party web site to remove a favorable comment about an attorney without violating the right of free speech?  Heck, think of the public outcry if the ODC attempted to force a third-party web site to remove an unfavorable comment about an attorney.  The public would see censorship, and the public would be right.

Even attorneys’ own web sites would seem to possess a First Amendment right which encompasses the general public posting favorable and unfavorable impressions of the attorney at issue.  So long as that attorney isn’t soliciting testimonials, I am unclear whether the ODC could regulate such speech.

I wish some attorney or group of attorneys would put some money together and seek a declaratory judgment to determine whether the ODC can regulate comments about attorneys on third-party web sites.  Our bar needs to put some First Amendment fear into ODC before they scare even more young members of our bar into foregoing an excellent marketing tool through more tales of bugaboos.

The disciplinary issue is the action itself, not whether it was done on Facebook.

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