A litany of rule changes have been made and ethics opinions issued by bar associations across the country in order to catch up with the pace of social media. A South by Southwest panel covered changes regarding competence, unintentionally transmitted communications, and disappearing data.
Competence with Social Media
Lisa Borodkin, founder and principal in Lisa Borodkin, Attorney at Law, covered updates to the competency requirement for attorneys as framed in American Bar Association Model Rule 1.1, comment 8 issued in August 16, 2018.
“It’s actually built into the competence requirement that lawyers must keep up with changing technologies and be competent not only in using new technologies, but also advising clients and those they supervise in using new technologies and all of the risks and issues,” Borodkin said.
Another change to competency was issued by California under Rule 1.1, renamed from former Rule 3.1.
“Now the rule of competence for attorneys generally says you have an ethical duty to handle matters that you are competent to handle,” Borodkin said. “What’s new in the California rule regarding experience is that it specifically says that you can refer a matter that you’re handling from an existing client to a competent attorney.”
Unintentionally Transmitted Writings
Hanna Shafran, an associate of Zaller Law Group, discussed new California Rule 4.4, which codified the 2007 ruling in Rico v. Mitsubishi.
Shafran said the Rico case regarded a plaintiff’s attorney inadvertently receiving information from the defense that he then disseminated to his co-counsel and used to impeach an expert witness. At the time, there was no rule governing the handling of unintentionally transmitted documents.
“Comment 1 to Rule 4.4 cites the Rico holding and suggests that an attorney who upon reading a communication that was received inadvertently,” Shafran said. “Immediately upon realizing that you had received a confidential communication, whether it was labeled as such or not, you should stop reading it and return it to the sender, and further reach an agreement to stop any inadvertent use. If you can’t reach an agreement on the inadvertently received information, seek the guidance of a tribunal.”
“In Texas, there is an obligation on the sender,” Shafran said. “They do it as more of a breach of the attorney-client privilege. The person who sent the information was the one who made the mistake. If you receive an inadvertent communication in Texas you’re allowed to use it—so long as you are acting truthfully.”
Keeping Clients Informed and Disappearing Data
California Rule 1.4, former Rule 3-500, “[i]mposes a duty on attorneys to keep clients reasonably informed of significant developments and promptly comply with request for information and significant documents,” Shafran said.
New to the rule is an addition and exception for this obligation, which in effect address the way information is transmitted, Shafran said.
“You may delay the transmission of information if it’s likely to cause imminent harm,” Shafran said. “There’s a feeling of instantaneous demand for information and I think it’s just to remind attorneys—that although you do have this obligation—to slow down and think about the information you’re conveying. Just because you can give it immediately doesn’t mean that you’re required to give it right this second.”
A popular new method of conveying information to clients has been through disappearing data, Borodkin said.
Disappearing data regards information that lawyers and clients exchange through apps designed to not create a record of that exchange.
“The host does not keep the information after it’s sent,” Shafran said. “Once the recipient receives the information, views it for whatever time period is allotted, then it’s lost and gone forever.”
Borodkin said disappearing data figured prominently in Waymo LLC v. Uber Technologies, Inc. when the Uber counsel used Wickr, an app specializing in disappearing data, to communicate with clients.
The judge scolded the attorneys for Uber at the time, but did not sanction them, Shafran said. However, there is no concrete ruling about disappearing data, so usage remains unclear and is up for ethical debate.
After Waymo v. Uber, Jennifer DeTrani, general counsel to Wickr, was interviewed by Law360.com about disappearing data, Shafran said.
“Using disappearing data shows an intent by the attorney to keep attorney-client communications privileges because you know it’s going to disappear and no one else is going to see it,” Shafran said, summarizing DeTrani’s argument. “[DeTrani] contrasted that by text messages, which she was citing as less secure. She was saying how texting with clients was almost less secure and almost showing less intent of keeping attorney-client privilege.”
Another opinion on disappearing data was an article from Duquesne University School of Law associate professor Agnieszka McPeak published in the Wisconsin Law Review, Shafran said.
“There is a duty under the federal rules to preserve data for discovery, but it’s not clear what your obligations are in using it under a disappearing data context,” Shafran said, summarizing McPeak.
“You can’t be a sock puppet or an anonymous coward and then go on the internet and do your private investigation work or try to sway public opinion,” Borodkin said.
Borodkin said the new rules in California are an extension of the attorney’s duty to be honest at all times.
“In general, the reasoning is a lawyer is required to be truthful all the time not just when dealing with clients or opposing counsel but even third parties,” Borodkin said.
That honesty also extends to attorneys communicating with unrepresented persons online, which was addressed in ethics opinions from the New York City Bar Association, Oregon State Bar, and the Texas State Bar, Borodkin said.
“Lawyers may not anonymously contact witnesses,” Borodkin said in regards to Texas Ethics Opinion 671 from March 2018. “It’s another violation of the duty to be honest and not to mislead.”
No Anonymous Trolling
Borodkin cited the ruling in the Supreme Court of Louisiana in In Re Perricone as a warning to attorneys attempting to act anonymously online. The case involved Salvador Perricone, a former U.S. attorney, posting pseudo-anonymous comments on the Times-Picayune website regarding a trial he was involved in.
“This attorney would go online and make comments like ‘they’re obviously guilty’ or ‘the jury is definitely going to convict them,’” Borodkin said. When the judge learned of the comments regarding the case, they were forced to set aside the conviction of the defendants, Borodkin said.
The final decision in In Re Perricone resulted in the disbarment of the attorney, Borodkin said.
“It’s very, very clear now that commenting anonymously on an active case is not only an ethical violation, it is so severe that it can result in disbarment,” Borodkin said. “The consequences can be quite dire.”
Even framing a current case as a hypothetical can be dangerous, Borodkin said, and cited ABA Committee on Ethics Formal Opinion 480 from March 2018.
“Attorneys must be hyper aware and hyper careful when framing real-client situations, even as hypotheticals, that it isn’t a case where the identity of the client could be derived,” Borodkin said. “That is disciplinary cause for investigation and discipline.”
Judges Can Be Facebook Friends
Shafran reviewed the 4-3 ruling in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto Ass’n, a Florida Supreme Court case, dealing with whether a judge must recuse if they are Facebook friends with an attorney in their trial.
“[The Florida Supreme Court] did the classic analysis of looking up the definition of friendship,” Shafran said. “They went through Merriam-Webster’s Dictionary, pared out what it means to be friends, applied it to traditional friendships—face-to-face—and what that means today.”
The majority opinion stated that Facebook friendships did not equal a friendship in the traditional definition of the word, calling them far more casual and less direct in nature, Shafran said.
“Just knowing a judge isn’t immediate grounds for disqualification of that judge,” Shafran said.
The minority opinion suggested a Facebook friendship between judge and attorney was a categorical disqualification, Shafran said.
While in agreement with the majority, one justice wrote a concurring opinion where “he suggested that judges, upon being confirmed, delete their social media and delete their Facebook to avoid any potential conflicts to alleged impropriety,” Shafran said.