Question

I use my personal Facebook page for postings that sometimes talk about cases I am handling. Do I have to be concerned about my postings?

Answer

Any discussion that you have about cases or client matters on even your personal Facebook page is governed by the Rules of Professional Conduct. This means that you must be very careful that you do not violate attorney-client confidentiality when making a post on your private Facebook page, because the confidentiality rule (SCR 20:1.6) would apply even though this is a personal Facebook page.

I also believe that the Rules of Professional Conduct would apply even if you have a strict privacy setting on your personal Facebook page that limits access to only those persons you have authorized for access. That is a closer question, but I am still of the opinion that the rules would apply even though it is a private-page posting.

Lawyers sometimes go too far in what they post to social media sites. The Kansas Supreme Court recently issued a decision in which it suspended a lawyer for six months after the lawyer posted a Facebook message that the court agreed was “emotional blackmail” because it was directed at an 18-year-old woman with commentary about her status as a mother who was allowing the adoption of her child.

The lawyer represented the child’s biological father in a proceeding to try to stop the adoption. The lawyer made an emotional commentary on his Facebook page about how wonderful parenthood was and the importance of a child knowing who her parents are. The lawyer self-reported himself to the regulatory agency because of questions raised about the post, including that the lawyer attached to the post a form that could be signed by the biological mother, revoking the proposed adoption. The lawyer made the Facebook post two days after the biological mother was deposed and directly addressed the post to her.

You must be very careful that you do not violate attorney-client confidentiality when making a post on your private Facebook page.

The Disciplinary Board found that this was “emotional blackmail” and represented “intentional bullying tactics” that reflected poorly on the practice of law. The post also included a false statement about adoption law and referred to a legal document that the biological mother could sign without recommending that the biological mother retain counsel before signing the document.

The Kansas decision is very fact intensive, and the result does not suggest that every posting to a Facebook page, whether subject to privacy limitations or not, would constitute a potential violation of the Rules of Professional Conduct. It does suggest that lawyers be cautious and think specifically about what they are posting to their Facebook pages if they are in any way dealing with client-related matters.

The use of social media as part of a lawyer’s practice is becoming very commonplace, but it is still important to be careful about what is posted to preserve attorney-client confidentiality and to avoid inappropriate communications with represented or unrepresented parties. Keep in mind that the Wisconsin Rules of Professional Conduct require a lawyer to clearly indicate his or her role when interacting with an unrepresented party while representing another person.