Attorney discipline and the social media bugaboo

Posted Thursday, February 3rd, 2011 by Gregory Forman
Filed under Not South Carolina Specific, Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct

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.

14 thoughts on Attorney discipline and the social media bugaboo

  1. here here, from a client that never would have found you without your blog

  2. MJ Goodwin says:

    Love, love, love the gun analogy! Hope you are well. I have a friend that the ODC scared to the point that she cancelled her Facebook account. She had done nothing wrong. Just had an account and attended a seminar! See you on Facebook!

  3. Greg:

    I wholeheartedly agree with all your comments in this blog. I commend you for writing it, and I hope the ODC reads it and takes heed. In addition, threatening lawyers for others’ speech such as compliments about the attorney is ridiculous if unsolicited by the attorney. Again, when the ODC decides to make an example of an attorney, I am afraid that will be the moment we all band together to take this up–way up and make some law.

    I just hate that it might take such a situation before they will correct the endorsement rule. I know this issue was being litigated in Florida on constitutional free speech grounds. Guess I need to research the result in that case!


  4. Paul Schwartz says:

    Great article Greg ! I look forward to these blogs !

  5. Who can control what third parties say about anything on the internet? Most of the people posting comments aren’t even identified. I know the Government of Egypt can’t manage it.

    Take a look at what people say about restaurants now. A lot of it is fiercely negative. If you poke around a bit, it seems pretty clear that competitors are posting snarks about each other and rating each other down.

    I assume attorneys will or are getting the same miserable treatment. I don’t think there is a force on earth which can stop it.

    I certainly read horrible things about Judges. Much of it is clearly unfair. Nearly none of it from identifiable sources. I continue to stand up for the independence and dignity of the court, but it is shouting into a hurricane.

    This is the future, not quite what we hoped for.

  6. Barby says:

    Social media, such as Yahoo! groups, blogs, Facebook, etc., will continue to evolve. However, please remember that it is “social” media. Would you open your doors and windows 24/7? You have the right to privacy, but you may unknowingly give that privacy away or in a moment of euphoric exuberance make bad choices and post your thoughts on the latest forum of social media. Are you a professional or not? Do you want privacy or not? Being cool or on the cutting edge doesn’t necessarily equate to being professional. It is sometimes difficult to separate your professional life from your social life. My advice-be discreet and avoid the latest social media fads. You might be missing a little buzzz, but your mistakes or foibles don’t need to be preserved in electronic form for eternity. Use your social media with the same rules of engagement that you would give your child or grandchild concerning engaging in informative posts on social media sites.

  7. Sally King-Gilreath says:

    Thanks for this article. It is so true. I have had to “de-friend” lawyers when I am the GAL on a case with them to “avoid the appearance of impropriety.”

  8. ak says:

    Thank you for writing this article. I have a personal page, but I have lived in fear of starting a facebook page for my law firm for quite some time. Other business owners, for many years, have been encouraging me to create a page for my firm because they have experienced an increase in business because of their Facebook Pages. I created a firm page, but I am still so afraid to use it that all I ever post are jokes and “this day in history info.” Until we ban together and address the issue, can you give me any solid advise about how to use facebook, twitter, and blogs so as not to violate the rules?

    1. The South Carolina Supreme Court recently modified the rules of professional conduct in ways that make it much safer to market oneself through social networking sites. Read: South Carolina Supreme Court modifies Rules of Professional Conduct on lawyer advertising and client “testimonials”

  9. ROBIN FLORES says:

    Damn! Looks like SC’s disciplinary counsel has gone off the deep end.

    Why not file a sect. 1983 injunction action against ODC? That may get their attention.

    Sometimes, state disciplinary counsel can become the embodiment of Orwell’s 1984.

    1. In August 2011, after this blog came out, the South Carolina Supreme Court modified the rules on attorney advertising so that third-party testimonials on third-party web sites are no longer verboten: South Carolina Supreme Court modifies Rules of Professional Conduct on lawyer advertising and client “testimonials”

  10. One of the more sane commentaries on this subject. I plan to quote you tomorrow when I teach a program on social media – preventing legal malpractice, for the Colorado Bar.

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