ABA's New Take on Lawyers' Use of Social Media

In early March, the American Bar Association issued an ethics opinion addressing lawyers' use of social media platforms, such as LinkedIn and Twitter, blogs, website postings, webinars and podcasts, and other online commentary. ABA Formal Opinion 18-480 confirms that lawyers who use social media, blog or engage in other public online commentary are governed by the duty of confidentiality of Model Rule of Professional Conduct 1.6. This conclusion should be of no surprise, but the opinion serves as a strong reminder that Rule 1.6's duty of confidentiality is broad in scope and without exception.

Model Rule 1.6(a) provides: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)." North Carolina Rule 1.6(a) is nearly identical to the Model Rule, covering "information acquired during the representation." N.C. Rules of Prof'l Conduct R. 1.6(a) (emphasis added).

The protections of Rule 1.6 are "far broader" than the attorney-client privilege and work product doctrine, as the confidentiality rule "'applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.'" ABA Formal Op. 18-480 (citing Model Rules of Prof’l Conduct R. 1.6, comment [3] (2017)); see also N.C. Rules of Prof'l Conduct R. 1.6, comment [3](2017).

According to the ABA Opinion, the duty of confidentiality extends to all information related to the representation even if that information is contained in the public record or is otherwise known to or accessible by others. See ABA Opinion 18-480 (citing ABA Formal Op. 04-433 (2004) ("Indeed, the protection afforded by Rule 1.6 is not forfeited even when the information is available from other sources or publicly filed, such as in a malpractice action against the offending lawyer.")). The ABA Opinion also cautions that client identity is subject to Rule 1.6's confidentiality rule and warns that online commentary using hypotheticals can violate Rule 1.6 "if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical." Id.

The ABA Opinion concludes:

"The salient point is that when a lawyer participates in public [online] commentary that includes client information, if the lawyer has not secured the client's informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is "generally known" or contained in a "public record." Accordingly, if a lawyer wants to publicly reveal client information, the lawyer must comply with Rule 1.6(a)."

This opinion serves as a reminder to lawyers that social media posts, blog entries or website postings regarding a client's matter – perhaps announcing a courtroom or transactional success or analyzing a court’s recent decision – should not be made without the client's informed consent or implied authorization. Similarly, a lawyer is restrained from responding to a negative online client review, if doing so would reveal information protected by Rule 1.6.

The ABA Opinion also cautions that lawyers who participate in online commentary, even with client consent, must remain mindful of other limitations imposed by the Model Rules, specifically referencing the constraints on trial publicity and ex parte communications under Rules 3.5 and 3.6.

Such limitations may be gleaned from North Carolina ethics opinions and emerging guidance from other jurisdictions:

• Lawyers must avoid false and misleading social media statements about their services and must comply with the advertising rules in all online content. See C. 2012 Formal Ethics Opinion 8 (guidance about use of professional networking sites, such as LinkedIn, that allow clients to write recommendations for a lawyer, analyzing Rules 7.1 and Rule 7.2); Proposed N.C. 2018 Formal Ethics Opinion 1 (addressing lawyer participation in online rating systems and obligations to monitor online reviews, analyzing Rules 7.1 and 7.2).
• Lawyers should avoid online interaction, such as comments or questions and responses, that could give rise to an attorney-client relationship. See ABA Formal Op. 18-480 n. 4.
• Lawyers must avoid engaging in prohibited ex parte communications with judges via social media or creating the appearance of judicial partiality through social media contact. See C. 2014 Formal Ethics Op. 8 (analyzing Rules 3.5 (ex parte communications) and Rule 8.4 (conduct prejudicial to administration of justice) and providing specific guidance for LinkedIn contact with judges).
• Lawyers' social media contact with represented and unrepresented persons is governed by Rules 4.2 and 4.3, and social media research of jurors is governed by Rule 3.5. Guidance from the ABA and other jurisdictions advises that a lawyer may view public social media content of a represented or unrepresented person and may request access to an unrepresented person's restricted social media content if the lawyer provides accurate information about his or her identity; however, a lawyer should not seek access to restricted social media content from a represented party without consent from the person's lawyer. In conducting juror research, a lawyer may view public social media content but must be aware of any automatic viewing notices sent to a juror by a social media platform and may not seek access to restricted content. See New York State Bar Ass'n, Social Media Ethics Guidelines (updated May 11, 2017) for a thorough analysis of these issues; see also ABA Formal Op. 466.
• A lawyer cannot have another person take action through social media that he or she is constrained from doing by the rules. See Rules 5.1 and 5.3 (supervision of lawyers and employees); Rule 8.4 (may not violate the rules through others).
• North Carolina lawyers must be knowledgeable about social media, as it may be relevant to a client's matter, and advise a client about the legal ramifications of social media use. See C. 2014 Formal Ethics Opinion 15 (analyzing Rule 1.1 (competency) and Rule 3.4 (obstruction of party access to evidence)).
• Lawyers should be mindful of the impact social media use and other online commentary can have on their professional reputations. Additionally, lawyers should consider positional conflicts that online commentary could create. See ABA Formal Op. 18-480 n. 4.

Many lawyers use some form of social media or other online tools for business development, legal commentary or publication, or factual investigation. In doing so, North Carolina lawyers must have the requisite knowledge about these tools to conform their use to the Rules of Professional Conduct. See N.C. Rule of Prof'l Conduct R. 1.1 [comment 8] (addressing technology competency); N.C. 2014 Formal Ethics Opinion 5 ("relevant technology includes social media"). Although standards for ethical use of social media and other online commentary continue to develop, North Carolina lawyers should remain abreast of available guidance from the State Bar and the ABA, as well as the guiding principles emerging from other jurisdictions.