There is a difference between going back to the office and talking about a case with your supervisor, and posting the courtroom drama of the day online.
In Illinois, a former assistant public defender is facing disciplinary charges for blogging about client confidential information (In the Matter of Kristine Ann Peshek, Before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission, Commission No. 09 CH 89). One of the counts charges the attorney with publishing client confidences or secrets on the Internet, for postings on her blog site -- one third of which was devoted to discussing her clients and work at the public defenderís office. Her blog was public and not password protected. A portion of one blog at issue, which started by identifying the client’s jail identification number, stated “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.”
Other postings contained confidential information about client drug use and client misrepresentations to the court and to probation. The attorney in question emailed the ABA Journal stating that she would never have posted information that would reveal a clientís identity without the client’s permission or unless it was public record (“Lawyer Faces Discipline Over Blog Posts,” Law.com Legal Blog Watch (3/19/2010); legalblogwatch.typepad.com).
The second count of the complaint charged the former assistant public defender with failure to disclose to a court, information necessary to avoid assisting her client with perpetrating a fraud. This was based on the attorneyís admission that she knew the client had misrepresented her drug use to the court. The conduct implicated, among other sections, the Illinois State Bar versions of ABA Model Rules 3.3 (candor) and 8.4 (misconduct).
Criminal defendants are complaining as well. A Somali man who was convicted of attempted murder related to a shooting in Minneapolis made a motion for a new trial based in part on allegedly anti-Somali comments the prosecutor made on her Facebook page (Debra Cassens Weiss, “Defendant Cites Prosecutorís Facebook Comments in Bid for New Trial,” (Feb. 18, 2010); http://www.abajournal.com/news).
But if the offending comments on Facebook were made by your client, before you think about telling your client to delete his or her social networking page, Rule 5-220, Suppression of Evidence, states that “A member shall not suppress any evidence that the member or the memberís client has s legal obligation to reveal or to produce.” Also consider ABA Rule 3.4, Rule 3.4 Fairness To Opposing Party And Counsel, which states in pertinent part that a lawyer shall not: “(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value Ö or counsel or assist another person to do any such act.”
Responses to blog posts unsolicited communications
Blogging can generate unsolicited responses and communications. Unsolicited comments on social networking sites may be analogous to unsolicited email, except that Facebook postings, unlike email, are much more public.
In deciding whether or not there is a reasonable expectation on the part of a potential client that the information they post on a lawyerís social networking site is confidential, in addition to considering how the information was posted on the site, we should look at other factors as well.
For example, there are some public networking sites on which lawyers can post answers to questions submitted. Does the lawyer who answers questions on line transmit a willingness to provide free legal advice and potentially enter into a lawyer-client relationship with people who are asking questions? Or maybe the lawyer is using Twitter and posting “Tweets” which contain information about the lawyerís practice that might arguably invite responses or questions from prospective clients. How might that affect the reasonableness of a potential client’s expectation that their information will be kept confidential?
The savvy lawyer will have a disclaimer on their site in order to guard against false expectations of creating an attorney-client relationship. Regarding website disclaimers, California Formal Op. no. 2005-168 opined that a lawyer who provides his or her website visitors with a means by which they can communicate with the lawyer on the site may effectively disclaim owing a duty of confidentiality “only if the disclaimer is in sufficiently plain terms to defeat the visitorsí reasonable belief that the lawyer is consulting confidentially with the visitor.”
The opinion goes on to specify that “[s]imply having a visitor agree that an ‘attorney-client relationshipí or ‘confidential relationship’ is not formed” would not defeat a visitor’s reasonable belief that the information transmitted to the lawyer on his or her site will be kept confidential. Many lawyers don’t fully understand the difference between the scope of attorney-client privilege and the scope of client confidentiality; we don’t expect non-lawyers to understand the distinction any better.
Regarding an unsolicited e-mail that is not in response to an invitation on a website, despite containing what one might otherwise consider confidential information, unsolicited e-mail -- just like an unsolicited detailed message on an answering machine -- normally will not constitute a confidential communication between lawyer and client. See San Diego County Bar Assn. Legal Ethics Committee Opinion 2006-1 (sdcba.org/ethics/ethicsopinion06-1.htm).
Join us next month as we continue to explore the ethical issues that are associated with social networking and the practice of law.
Patrick is a deputy district attorney in the Sex Crimes and Stalking Division of the San Diego District Attorney's office and has been a chair of the San Diego County Bar Association Ethics Committee. Ms. Patrick is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) She can be contacted at email@example.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.