The Coming Ethical Minefield (Update)

It’s not as if lawyers haven’t managed to find their way onto social media over the past decade or two, but most of us haven’t exactly been early adapters unless we had the misfortune to be born digital natives. And almost every early adapter touted by the New Normal of Legal Tech folks from a decade ago have since failed at law and are now engaged in trying to make self-help podcasts on how to beat drug addiction, mental illness, and still fail at law.

But with the n00bs who have entered the ether, especially over the past few warehoused months when it’s become the only means of outside communication, adaption is no longer optional. So naturally, state bars are doing what they can to help explain the “minefield” of online ethics. Indiana, a perennial leader in technological lurching, pushed to the head of the virtual line in response to a pressing issue.

Question
Can a third party’s addition to a lawyer’s social media pages have ethical implications to the
lawyer?
Short Answer
It depends on the actions the lawyer has taken to prevent and/or rectify the situation.

“It depends” is almost always the best answer for lawyers, although it’s also a good idea to use it as an answer to a moderately coherent question, which is ironic given Indiana Rule 1.1 (Comment 6), which provides “A lawyer must be well-informed of the ‘benefits and risks associated with technology relevant to the lawyer’s practice.'” But the Indiana Supreme Court, which handles such matters with alarming tech finesse, was kind enough to provide a summary.

An excellent rule of thumb for social media is if the attorney cannot do it in person, he/she
cannot do it online. When it comes to third party comments, tags and endorsements, the same rule applies. If the rules prohibit the attorney from saying it, tagging it or endorsing it, then a third party, including the lawyer’s staff, create ethical problems for the attorney by posting such content on the attorney’s social media. Lawyers must prevent or remove content which would violate the professional rules.

So by third party, they mean a lawyer’s staff, but they also mean any random nutjob on the internet commenting, tagging or endorsing . . . something? Fear not, for they go on to provide “minefields,” which is as apt a description of social media as can be.

Minefield #4: Adoption of a third-party comment.
An attorney who responds to or “likes” a third party’s comment that contains prohibited content could be deemed to have adopted the third-party comment. Such action could subject the attorney to a rule violation. The failure by the attorney to delete prohibited content could be considered acquiescence and expose the lawyer to discipline.

A lawyer should also be careful to adjust privacy settings to avoid being “tagged” to improper
content which could show up on the lawyer’s page and thereby be deemed adopted by the
lawyer.

If you thought “liking” the wrong person or twit was a minefield before, consider what it means for your ticket. The general rule that “likes” do not equal endorsements not only is out the window, but could expressly be deemed adoption. But how does one delete a third parties’ comment about them, their client, their practice, some judge or uses a word that a year later is determined to be racist, sexist, or some sort of phobic?

Maybe you retwitted something a world renowned scientist wrote which, an hour later, is determined to be hate speech? Even worse, maybe you liked something written by a person holding high governmental office, which by definition is deemed hate speech? Or worse, what if someone tags you in their hate speech? Or tags a member of your staff, so you don’t even see it? But one of your colleagues sees it and loses their head over your horrifying and exhausting unethical conduct of supporting a public official?

It’s one thing to be held to a constricted limit of free speech directly connected to your practice, but as the reach of the bar extends beyond the courtroom or client communications into your social media sphere, and now into other people’s social media that tangentially relate to you, what are you supposed to do about it?

You can’t force a third-party to delete their Facebook page. You can’t make some random nutjob on twitter untag you. You can block people, assuming that’s what’s meant by “adjust privacy settings,” but that has some significant implications for your freedom of speech and association and, frankly, of little help when it comes to making the offending social media post disappear. Just because you don’t see it doesn’t mean others can’t.

What do you say to the nice client who called you a magic lawyer? Condemn him on social media? Deny your success or skill? Reject the endorsement and tell the client to read a book?

While the myriad issues raised by this insertion of the bar ethics scolds into lawyers’ social media accounts have yet to be fully plumbed, the more serious issue is that the bar is increasingly seeking to hold your license to practice hostage to your expressing only the most socially just views. Imagine the poor lawyer who “likes” a twit by some right of center pariah that “all lives matter,” and it’s picked up by some baby lawyer and gets ratioed. Do you not think that could produce 100 grievances filed against you? Now that you’ve been warned, want to test the waters by expressing an anondyne thought that might offend a cutting-edge scold, at the risk of your law license?

And as long as we’re talking ethics, be aware that the near-universally rejected ABA Model Rule 8.4(g) lawyer speech code is trying to make a comeback. Via the ever-watchful ABA eye of B.McLeod, the ABA Standing Committee on Ethics and Scolding has issued a “formal opinion” in response to no one for the apparent purpose of resurrecting its moribund desire to convert the bar into paragons of wokeness.

Perhaps the effort to impose a social justice speech code on lawyers was just ahead of the game, and now that there are roving mobs to serve as enforcers of the orthodoxy, the bar will be more receptive to the ABA’s iron-fisted control of appropriate speech? Although, as B. notes, it makes no mention of age discrimination, since the ABA charges higher dues to lawyers of lengthier experience, a proxy for age, and that would just be awkward given its precarious financial standing.

Update: Josh Blackman parses the Rule 8.4(g) issues in greater detail at the Volokh place.

15 thoughts on “The Coming Ethical Minefield (Update)

      1. Guitardave

        None the worse I suppose…if you weren’t reminded, you wouldn’t know you forgot, right? Sorry if I bummed you out by inadvertently reminding you that getting old sucks.

  1. John Barleycorn

    Garrulous AND gauche where has thy gallant guild gone?

    But alas, latitudinal licensing should be fun… Besides, the law always did have a sort of latitudinal diversity gradient to it anyway…

    Get back to the equator.

  2. Charles

    To create plausible deniability, just add an “Interesting” button. It’s nicely ambiguous.

  3. Jake

    Though we often disagree, I will be sorely despondent if anyone or anything causes you to sheath your mighty pen.

  4. B. McLeod

    The ABA Formal Opinion does mention age discrimination in those places where the full text of the rule is set forth. There just isn’t any focus on it in the opinion. In the lead paragraph, “age” is not mentioned as one of the various categories as to which ABA has any concerns about discrimination or harassment.

    In the opinion’s examples of conduct that violates or does not violate the rule, the authors neglected to address whether voluntary membership in a bar association whose dues structure is a proxy for age discrimination violates the rule.

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