Question
A former client is making critical statements about me on Facebook. Can I respond to these statements?
Answer
Two facets of social media that can cause difficulties in certain situations are instant access and immediate communication. Lawyers do not have the same freedom as do some other professionals to use social media to make statements about their practices or their clients because of the confidentiality requirements of SCR 20:1.6. Confidentiality is often called the cornerstone of the lawyer-client relationship, and some ethics commentators suggest that even the fact that a client has retained a lawyer for services is confidential and should not be disclosed to the public.
One exception to the confidentiality rule is potentially relevant, but it is unclear whether that exception would apply in this case. SCR 20:1.6(c)(4) states that “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary…
“[t]o establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”
This provision allows a lawyer to disclose confidential information learned during the course of representation to, in effect, “defend” the lawyer from a claim made by the client. This would clearly apply when a client is bringing a malpractice action against the lawyer or bringing a grievance with the Office of Lawyer Regulation regarding the lawyer’s conduct. It is very unclear, however, whether this provision would apply to allow the lawyer to respond to criticism made by a former client on a Facebook page because of the lack of a clear definition of “controversy.”
The lawyer clearly has a duty to keep information related to the representation confidential. The lawyer also has an obligation to not take action that would be harmful to a client or a former client. A recent Georgia Supreme Court decision emphasizes the duty to maintain the confidentiality of client information. A lawyer was willing to accept a public reprimand for disclosing confidential information while responding to critical statements by a former client, but the Georgia court rejected that proposed discipline and sent the matter back to the referee for further consideration concerning the appropriate remedy.
In doing so, the Georgia court cited a decision in which the Wisconsin Supreme Court suspended a lawyer for 60 days as part of discipline reciprocal to that imposed in Illinois, based on the attorney’s disclosure in blog posts of confidential information about her activities in court as a public defender.
Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce. He can be reached at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m to 4 p.m.
The Los Angeles County Bar Association, in a December 2012 opinion, concluded that a lawyer could “respond to [a f]ormer [c]lient’s internet posting, so long as: (1) [the a]ttorney’s response does not disclose confidential information; (2) [the a]ttorney does not respond in a manner that will injure [the f]ormer [c]lient in a matter involving the former representation; and (3) [the a]ttorney’s response is proportionate and restrained.”
The state of California is not subject to the Model Rules of Professional Conduct and therefore the Los Angeles County Bar Association did not directly consider the exceptions that are found in Model Rule 1.6. The opinion offers some guidance, however, regarding the potential response that a lawyer could make to a former client’s Facebook posting that contains negative information about the lawyer.
It is likely that the exception in SCR 20:1.6(c)(4) would not apply to a social media posting by a lawyer responding to the former client’s criticism on Facebook. The lawyer therefore must be very careful when developing and disseminating a response concerning the former client’s online statement. Discretion would be better exercised by not responding to the posting unless absolutely necessary to defend the lawyer’s reputation.
In a recent development, an Illinois lawyer was issued a five-month suspension of his license for posting a video to YouTube that included videotape of an undercover drug buy involving one of his clients. The video was obtained through discovery, and the lawyer posted it online without his client’s permission with a link to the lawyer’s Facebook page. The lawyer believed that the video exonerated his client and also believed that the video was able to negate pre-trial publicity that adversely affected his client. Ultimately, it was shown that the videotape supported the criminal charges. There was a serious question of whether the client had given informed consent to the posting of the video, which constituted confidential client information. This is another example of the potential pitfalls of using social media in your practice.
