Danger Ahead: Use Caution When Traversing Social Media Sites by Kimberly Loges
Originally published in the State Bar of NV publication Nevada Lawyer December 2009
Social media is taking up a lot of attorneys’ time these days. Whether it’s updating statuses on Facebook, MySpace or Twitter, reading received Tweets, or blogging about the day’s events chances are attorneys have not spent much time thinking about how dangerous these activities may be for their legal career. For those unfamiliar, social media sites encourage one to reconnect with lost friends, classmates or colleagues, and make it easy to search for them either through email addresses or geographic networks. According to a recent LexisNexis survey: 86 percent of lawyers ages 25 to 35 are members of social networks like Facebook, LinkedIn and MySpace, as opposed to 66 percent of those over 46. In addition to this survey, Stephen Gillers, an expert on legal ethics at New York University Law School, believes that “twenty-somethings have a much reduced sense of personal privacy.” This reduced sense of personal privacy has lead to an increase of attorneys acting carelessly, and sometimes recklessly, on Facebook, MySpace, Twitter, and public blogs. While this behavior reflects poorly on the legal field it may ultimately bring about needed discussions on how attorneys can use social media and still retain their professional integrity. For the time being, the Model Codes of Professional Conduct do not include rules for professionally interacting with social media sites. However, this may change in the future as more and more lawyers find themselves in courtrooms and before disciplinary boards for conduct related to social media sites. This paper presents several examples of how members of the legal field have failed to behave professionally when it comes to social media sites, and offers suggestions on how best to avoid these pitfalls.
For starters, attorneys should think twice about what kinds of personal information they put on the internet. Each time an attorney creates a profile on a social media site, he is essentially advertising himself. However, unlike advertisements that have fine print, a profile does not include a disclaimer cautioning its readers about potential sarcasm, inappropriate comments or even adult content. Although it is true that social media sites can provide an attorney subtle and informal data about clients, witnesses, adversaries, and jurors which might not be found elsewhere, people can also seek out similar information on members of the legal community. Moreover, law firms, and even one state bar association, have turned toward reviewing social media sites as a means of looking at an attorney’s character. Despite the fact that most social media sites allow users to keep their profiles private, that privacy is deceiving as passwords can easily be shared or hacked. Furthermore, regardless of whether an attorney’s profile is private or public potential clients are still able to make decisions about who to hire based on an attorney’s contact list, friends or followers and those person’s political affiliations, religious convictions, and/or personal interests. With many clients already suspicious of the legal system before they hire an attorney it is important to consider what effect social media sites may have when attempting to earn a client’s trust. Therefore, it would be wise for an attorney to not only limit his personal information, but also look into the privacy measures the site offers. A measure as simple as blocking comments from others, or screening who can see photo albums or status updates could save a lot of embarrassment for an attorney later on.
Additionally, attorneys must also be careful with whom they become “friends” with, as it is not always clear how well people know each other on these sites. Thus, becoming “friends” with a judge’s sister, who is a member of one’s church, may still lead the judge to err on the side of caution when it comes to questions of disqualification and/or recusal. In addition, as there are no distinctions between types of friends on these sites it may be difficult to explain to a court that Bob is not really a close friend in the traditional manner, but instead someone you haven’t seen since elementary school. Moreover, an attorney should be careful to not communicate with an adverse party’s client without the consent of the opposing counsel. The question becomes does a “friend request” or “friendship” via Facebook or MySpace constitute “communication” under the Model Rules of Professional Conduct? While one court held that a “friend request” constituted a violation of “contact” for a temporary restraining order, another court assigned no significance to the Facebook “friends” reference. In People v. Fernino, the defendant used MySpace to send a “friend request” which the state argued was a violation of a temporary restraining order. The Fernino court stated that:
While it is true that the person who received the “friend request” could simply deny the request to become “friends”, that request was still a contact, and “no contact” was allowed by the order of protection. It is no different than if the defendant arranged for any agent to make known to a claimant, “Your former friend wants to communicate with you. Are you interested?”
Although one may argue that there is a difference between contact for a temporary restraining order and communicating with an adverse party’s client, it is unclear how a court may ultimately rule. On the other hand, in Quigley Corp. v. Karkus, Quigley presented evidence that defendants Ligums and DeShavo were Facebook friends as proof that the shareholders had extensive personal and professional connections, and thus were in agreement to act in concert to solicit proxies and vote shares for control of the company. While the Quigley court stated that friendships on Facebook hold little weight and may be as fleeting as the click of a delete button, other courts may view these relationships differently in the future.
Deciding whether to become friends on Facebook or MySpace with clients should be another concern for attorneys. Becoming friends on a social media site with a client potentially means that the client can read other friends’ comments, see online photo albums, read status updates about things occurring in his attorney’s personal life, and see who else his attorney knows. Conversely, a client may prefer that you keep his identity confidential and not have any contact through social media sites. The thing to keep in mind is that while having a casual conversation with clients in person one can at least control how much and what kinds of personal information are discussed and keep any other boundaries in place. With Facebook or MySpace it may only take one inappropriate remark to destroy a client relationship.
Those in the legal field should also think twice when it comes to being friends on Facebook or MySpace with opposing counsel or other legal professionals. For example, one lawyer requested and received a continuance due to a death in her family. The judge, Susan Criss, later checked the lawyer’s Facebook page and found stories of drinking and partying, not activities one normally does while grieving. Criss stated, “All week long, as the week is going by, I can see that this lawyer is posting about partying. One night drinking wine, another night drinking mojitos, another day motorbiking.” When the lawyer requested a second continuance Judge Criss declined and disclosed her online findings to a senior partner of the lawyer’s firm. The lawyer has since removed Judge Criss from her friend list and most likely learned a thing or two about what not to put online. Thus, attorneys should note that other legal professionals may use a profile’s information against an attorney later on.
Social media sites can also interfere with the professional responsibilities of the judiciary. A notable example involving judicial ethics involved North Carolina District Court Judge Terry becoming Facebook friends with defense counsel. After the two exchanged several messages on Facebook that involved references to the specifics of a case both were involved in, Judge Terry was publicly reprimanded for having unauthorized, ex parte communications with the lawyer. Another example involves a law student who asked a federal judge to recommend his work on the networking site LinkedIn. The judge responded that he would gladly be a reference; however judicial ethics constrain him against providing a recommendation, either in letter or electronic form. In short, judges should be even more cautious than attorneys when using social media sites.
Bad-mouthing others in the legal field through the use of social media sites is another issue that is becoming more prevalent. Former attorney Jay Kuo experienced this first hand after calling his opposing counsel “chicken” on his private blog. California Superior Court Judge Curtis Karnow heard about Kuo’s blog post, and read it, along with several other postings. While Karnow failed to find the postings prejudicial enough to throw out the case at hand, the judge still came down hard on Kuo, calling his behavior “juvenile, obnoxious and unprofessional.” Moreover, Judge Karnow concluded that Kuo was not trying to interfere with the defendant’s relationship with his attorney; only that Kuo “sought to celebrate himself, tout his prowess and to preen his own feathers, as it were, unconscious of other effect.” Karnow also felt that Kuo’s actions were probably reckless because he should have known that his private blog could be uncontrollably distributed. Other examples of bad-mouthing judges include those of Sean Conway and Kristine Ann Peshek. Conway called a judge an “evil, unfair witch” in a blog post, for which he received a reprimand, and Peshek referred to one jurist as clueless and another as an —hole.
Along with refraining from bad-mouthing legal professionals, attorneys should use caution with regard to the overall content of their blog posts. In addition to bad-mouthing judges, Peshek is currently facing a disciplinary hearing for identifying clients on her public blog by either their first names, a derivative of their first names, or by their jail identification numbers. Moreover, Peshek also included confidential details of cases, including statements such as, “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.” As a consequence of her unprofessional behavior, Peshek lost her job as an assistant public defender after nineteen years.
Attorneys who blog may even find themselves before the court for defamation. Attorney Eric Albritton sued blogger/attorney Richard Frenkel for defamation based on anonymous blog postings Frenkel posted to his blog “Patent Troll Tracker.” The complaint claimed that Frenkel defamed Albritton by accusing him of conspiring with a federal judicial clerk to alter documents to obtain subject matter jurisdiction in a patent suit. The defamation suit settled after the federal judge ruled that Albritton could not win punitive damages unless he proved actual malice. Thus, even somewhat anonymous blog postings can cause problems for an attorney’s career.
In conclusion, if legal professionals do find themselves using social media sites, they should think twice about what information they provide and with whom they connect. Whether it is using the privacy controls or creating two profiles, one personal and another for professional purposes, or completely staying clear of the sites, legal professionals need to exercise caution so as to avoid conflict later on. For those in the legal field who will continue to use social media sites remember what your mother told you, “if you don’t have anything nice to say, don’t say anything at all.”
Professionalism in the practice of law is questioned when an attorney is approached to concurrently defend codefendants of a domestic violence charge arising from the same incident. On one hand, the rules governing conflicts of interest don’t allow it; yet on the other there are strong moral and economic reasons as to why it is better that defendants have one attorney rather than two. In the end, choosing to either turn down the client or accepting the client is perfectly fine as long as a decision based upon professionalism is made.
Domestic violence is typically a case of battered women that have been oppressed, but this is not always the case. Sometimes, when domestic violence occurs, each party is both a defendant and a victim of the crime. In situations such as these, parties may not want to separate from each other or be protected from each other. They may have been involved in a small argument remain that got out slightly out of hand. For the unlucky, or at least those with open windows and close neighbors, law enforcement may be called to step in due to a neighbor complaint or an injury. When emergency personal arrive, healing the damage is not the priority, charging the parties is. Lawyers are left to clean up the mess, and the lawyer must consider what it means to be a professional in the practice of law in mind.
Professional Reasoning for Why They Should be Denied
Professionalism in the practice of law is more than being courteous and dedicated representatives of our profession and the courts. It is the way we talk, the choices we make, our manners in court, and sometimes the types of clients we choose to defend. This issue of professionalism in law and what it means for us to act in a professional manner has no definite answer. There might be rules that outline what we “can” do, but as professionals we must think about what we “should” do.
According to the rules, a conflict of interest is adverse to professionalism in our field. A conflict of interest is present when counsel’s representation of one client is directly adverse to another, and that the representation of one will materially limit counsel. Nev. R. Prof. Conduct 1.7(a). This ethics rule that governs a lawyer’s conflict of interests seems to allow the representation of our poor couple; but according to rule 1.7(b), counsel must reasonably believe that they will be able to provide “competent and diligent representation,” and the lawyer must obtain a signed informed consent. Nev. R. Prof. Conduct 1.7(b). In the context of litigation, which criminal law is involved in, a lawyer should never represent in litigation multiple clients with differing interests; and there are few exceptions in which he would be justified.” Ronald D. Rotunda, John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, § 1.7-1, 321-322 (West 2008).
Despite Rule 1.7(b), which provides exceptions and protection to representing concurrent conflicts of interest, lawyers should be concerned. Just because it is allowed, or there are ways around it does not mean that they are acting in a professional manner. Clients invest a great deal of trust in their advocate. The level of trust in counsel should be reciprocated by greater amount of professional responsibility. In criminal cases, special vigilance is required because divided loyalty can undermine sixth amendment rights. State ex rel. S.G., 814 A.2d 612 (N.J. 2003). For the defendant, the violation of rights is horrific; in the practice of law, having divided loyalty amongst clients is not acting professionally.
Concurrently representing interests that have an adverse effect on a lawyer’s performance is a conflict of interest, and is not professional conduct in the practice of law. In Cuyler v. Sullivan, the issue stemmed from a criminal case where there were three defendants that each had separate trials, and were all represented by the same two attorneys. Id, 446 US 335, 336 (1980). Counsel chose to rest after prosecution had closed because their client’s testimony would have had a damaging effect on the co-defendants that they also had to consider. Id.
In a domestic violence case where both parties are charged, counsel’s performance may be adversely affected by the circumstances presented. Just as in Cuyler, counsel could conceivably advise one party to not take the stand in order to prevent the other from receiving a harsh penalty. Id. Engaging in these questionable practices is not just unprofessional; it is against interpretations of the rules.
Extreme circumstances, or a spotted history for one of the defendants in the domestic violence situation presented may force the attorney to sacrifice the best interest of one client for the betterment of the other; thereby creating a conflict of interest that qualifies for an ethical violation in accordance with 1.7(b). Nev. R. Prof. Conduct 1.7(b). Also, it seems that if one defendant is more culpable than the other, conflict is inevitable and can not be avoided by counsel. In these cases, the answer seems clear. As a whole, our colleagues have decided that this sort of conduct is not only unprofessional; it is subject to punishment.
Even more dangerous, is being concurrent counsel to a criminal defendant and prosecution’s witness/victim of defendant. Glasser v. US., 315 U.S. 60, 75-76 (1942). In Glasser, cross examination of the states witnesses, who were both concurrent co-defendants being represented by the same lawyer; raised a conflict of interest. The Glasser court held that this was in violation of defendant’s sixth amendment rights, and as a result a new trial with different counsel was granted. Id. A lawyer knowingly entering a situation such as this is not acting as a professional to their client, nor a professional in the practice of law.
Also, joint representation of clients conflicting interests is damaging because of the stranglehold it puts on the attorney. Holloway v. Arkansas, 435 U.S. 475, 480-90 (1978). In this case, counsel was jointly representing three defendants involved in the same crime. Id. Defense counsel made an objection because he could only directly examine his witness, who also happened to be his clients. Id. He also could not force them to incriminate themselves, and he also could not cross examine them. Id. Counsel’s ability to perform integral lawyering practices was limited because of the conflict of interest present. It would seem to be inherent that a “possible conflict inheres itself in every instance of multiple representation.”
Here in the Silver State, the Standing Committee on Ethics and Professional Responsibility has expressed its opinion in regards to a counsel having influence over prosecution’s main witness. According to the Committee, it is an ethics violation due to a conflict of interest. Nev. Ethics Op. 23 (1995). Much of the committee’s reasoning came from a New York case where an attorney concurrently represented the defendant and the defendant’s father. People v. Stewart, 511 N.Y.S.2d 715 (N.Y. 1987). The defendant’s father was the prosecution’s main witness. Id. The Stewart court ruled that “because of the conflict of interest, defendant was deprived of the effective assistance of counsel.” Id., at 717. Both the U.S. Supreme Court and our state’s committee on ethics and professional responsibility seem to have the opinion that an incident where a lawyer concurrently represents both the defendant and prosecutions witness is a conflict of interest. According to the opinion of the committee, engaging in such practice is not acting professionally.
Representing two defendants with charges relating to the same incident often violates a lawyer’s professional responsibility to their client. In Holloway, much like in Glasser, defense counsel was limited because they were not able to cross examine any of the prosecutions witnesses, nor was he able to cross-examine any of his own witnesses. In fact, direct examination of his own witness was problematic because counsel needed to take into consideration his other defendants and their liberty. Holloway, 435 U.S. at 488. Glasser, 315 U.S. at 75-76. If counsel were to represent dually charged defendants in domestic violence, his ability to fulfill his professional duties in the practice of law would be limited. The ability to cross-examine state’s witness would be non-existent, and effective direct examination would not be fruitful because the codefendants must be taken into consideration. Ability to plea bargain is extremely limited, and depending on circumstances and jurisdiction, any conflict waiver would be void. Thomas v. State, 551 S.E.2d 254 (S.C. 2001). Blame shifting, certain plea options, and evidence challenges are all necessary lawyering strategies that would be compromised; and thus, counsel would not be able to practice law effectively, and most definitely not responsibly. Glasser, 315 U.S. at 75.
In accordance with the Rules of Professional Responsibility, a lawyer may not engage in a “positional conflict.” Nev. R. Prof. Conduct 1.7(b). A positional conflict occurs when a lawyer engages in inconsistent positions while in two pending cases. Id. Therefore, a lawyer would not be able to say “A acted in self defense against B” in case one, and then in case two say that “B acted in self defense against A.” Doing so would be a conflict of interest, once again engaging in conduct not professional in the practice of law. Id.
Counsel’s representation of both defendants may have an adverse affect on people other than themselves. The State’s intervention is often times considered a symbol of hitting rock bottom; this is true for a large majority of DUI offenders, drug possessors, and domestic abuse victims. It may be in the best interest of both domestic violence defendants to have their own attorneys; this allows them to tell their true story without fear of violence. Without the two defendants separated, there is a chance one may “hold” back their story, or history of altercations, in fear that the other party may use violence again.
Recognizing what is in the client’s best interest is a responsibility lawyers have in practice. Doing otherwise would be a far cry from acting professionally. At all times, the client’s best interest must be taken into consideration, and as lawyers we know that things are not always what they appear to be. It if our responsibility in the practice of law to investigate and determine if we truly are performing in the best interest of our client, rather than the requested interest.
Professional Reasoning for Why Accepting the Clients is Right
Joint representation sometimes offers defense strategies that otherwise would not be available. From a tactical point of view, having a united front on all issues is advantageous to each defendant. Counsel is able to negotiate from a position of having two cooperating and united defendants, rather than defendants willing to undermine the other to get a deal. Also, since domestic violence cases have a special relationship between victim and defendant, the two can go through the process together, rather than feeling prejudice against one another.
It may be that domestic violence charges are not indicative of an abusive relationship. Maybe it was just two people in a slight argument. The argument may stem from a reason not related to their personal feelings; and may come from elsewhere. There is a chance the argument may come from the exact reason they want to share an attorney; finances. Investigating and determining where the problem lies is, and not being afraid to pursue the proper avenue is what the practice of law is about.
The professional should understand where their clients are coming from. There is no question that hiring the same attorney saves money. In the United States, one of the leading causes of arguments and divorce among married couples is financial strain. Having one attorney for each defendant strains the financial situation the codefendants are already faced with. With one attorney there is only need for one discovery, no deposing of the victims, one client counseling, and only one attorney will be paid for deposing any other witnesses. The cost is significantly reduced.
Professionals should know the dangers their clients may face, and is it is their responsibility to inform and try to protect them. The adversarial system used in the United States is better at seeking justice than creating an understanding amongst parties. In a two lawyer system for domestic violence, each attorney will be trying to shift blame to the other, cross-examining harshly, and inevitably increasing the division between the defendants. What should be taken into consideration is the relative health of a relationship, where the problem lies, and steps that can be taken to help rather than punish. In the practice of law, counsel should be aware of special relationships, in fact it is there responsibility to take these issues into consideration. Nev. R. Prof. Conduct 2.1.
When there is only one attorney, the best interest of the relationship can be considered. The lawyer must consider both results, and not just one. Gone is shifting blame and subterfuge from each side. Instead, the general welfare of the relationship is essential for the attorney’s success. Also, the attorney has the ability to make a plea option where both defendants can engage in relationship counseling to determine issues, rather than punishing them separately.
Most importantly, as long as the attorney explains potential conflicts and ethical issues, and the defendants sign a waiver, representing both is not an ethics violation. Nev. R. Prof. Conduct 1.7(b). Also, there is no case law that currently comments, nor forbids, this exact situation. It may be an old cliché, but if it isn’t broken, don’t fix it. Not only is the lawyer acting professionally by fully explaining all potential issues that might be faced, he is being smart about understanding what he can and can not do in the practice of law.
When an attorney is faced with a conflict of interests and the client is informed, the client still has right of choice. U.S. v. Perez, 325 F.3d 115, 124 (2d Cir. 2003). Failure to allow this is a sixth amendment right violation. Id. Disallowing our codefendants to choose the same attorney is a constitutional violation. If they are willing to waive conflict of interest and loyalty, then they should be allowed to have the same counsel. As professionals, we need to let our client know the issues we face; but if they stress that we are the “best man for the job,” it is our duty to represent them.
Concurrently representing conflicting interests need not always be a taboo. Divorce mediation, interests in property, and planning estates are all excellent examples. Domestic violence can, and often is the result of horrible circumstance and conditions for the abused, but every situation must have their facts analyzed. To do otherwise would be to lump large numbers of different groups together. There is a big difference between stealing a candy bar to eat and stealing a woman to sell into sex slavery. The facts must be weighed; domestic violence should be no different.
As with many things with law, there is no right answer; there is only the reasoning that is right to you. The case must be taken for the right reasons, and the proper steps informing the client for that decision must be made known to them. Professionalism in the practice of law is more than just doing what is right; it is the reasoning behind why we are right. In this instance both the choice to accept or deny are right. Denying them considers the rules of conduct; accepting them considers the clients needs. In either case the lawyer is acting the way a lawyer should; as a professional.
If I were to be faced with this situation, I would think very hard about the potential consequences. On one hand I might be protecting an individual that maliciously abuses another; yet on the other hand I might be faced with a trivial matter that was blown out of proportion and now has come to the attention of the State. As a professional, I would like to do what is in my client’s best interest. This may mean pursuing alternative means of problem solving. If available, I would explore counseling services for finances or emotions, domestic education programs, and certain forms of community service so that the defendants benefit from the situation, rather than suffer.
Acting as a professional should in the practice of law is more about doing what we should do, not what we can do. Only you can make that decision for yourself.
|Pledge of Professionalism|
(Copies suitable for framing are available upon request.)
Adopted by the Clark County Bar Association
In my role as a counselor, advocate and officer of the court, I aspire to a standard of conduct that warrants the term “professional.” I seek to earn a reputation for honor, trustworthiness and professionalism among my clients, the legal community and the community at large. As a lawyer dedicated to the professional and ethical practice of law, I will conduct myself in accordance with the following Pledge of Professionalism:
I. To a Client, a lawyer owes undivided allegiance, the full application of the lawyer’s abilities and the employment of all appropriate legal means to protect the client’s legitimate rights.
1. I will achieve my client’s lawful objectives as expeditiously and economically as possible, and I will advise my client against pursuing any matter that is without merit; 2. I will counsel my client with respect to mediation, arbitration, and other alternative methods of resolving disputes; 3. I will counsel my client that a willingness to engage in settlement discussions is consistent with effective representation; 4. I will advise my client that civility and courtesy are expected of all participants in the legal system, and that such qualities are not a sign of weakness; and 5. I will not permit my commitment to my client’s cause to interfere with my ability to provide my client with objective advice.
II. To other Counsel, Their Clients and Office Staff a lawyer owes courtesy, candor and cooperation in all respects not inconsistent with his or her client’s interest, and scrupulous observance of all mutual agreements and understandings.
1. I will be courteous and civil to other counsel, their clients and office staff, and my word is my bond; 2. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities when the legitimate substantive interests of my client will not be adversely affected; 3. I will cooperate with other counsel when scheduling depositions and meetings; 4. I will refrain from using litigation, delaying tactics, abusive discovery, or any other conduct to harass another party; 5. I will serve motions and pleadings in a timely manner to allow the other party a fair opportunity to respond; 6. I will concentrate on matters of substance and content, and not quarrel over matters of form; and 7. I will identify for other counsel or parties all changes I make in documents submitted to me.
III. To the Court and Other Tribunals a lawyer owes respect, diligence, candor, and punctuality.
1. I will conduct myself in a professional manner and demonstrate respect for the court, other tribunals and the law; 2. I will always be candid with the court and other tribunals; 3. I will be punctual in attending all matters before the court and other tribunals; 4. I will communicate with other counsel in an effort to resolve disputes; 5. I will refrain from filing frivolous pleadings, papers, or motions, and will voluntarily withdraw claims or defenses when it becomes apparent they do not have merit; 6. I will make every effort to agree with other counsel as early as possible on the voluntary exchange of information and a plan for discovery; and 7. I will advise my clients of the behavior expected of them before the court and other tribunals.
IV. To the Public, a lawyer owes the highest degree of professionalism.
1. I will conduct myself in a manner that will encourage trust of the legal profession by members of the public; 2. I recognize and will abide by the principle that the legal profession is devoted to public service, improvement of the administration of justice, and the uncompensated assistance to persons who cannot afford representation; 3. I will treat my office staff with courtesy and respect, and will encourage them to treat others in the same manner; and 4. I recognize my conduct is governed by standards of fundamental decency and courtesy, in addition to the Nevada Rules of Professional Conduct.