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Can Lawyer Facebook Violate the Rules of Professional Conduct in Massachusetts?

A Massachusetts Attorney was reprimanded for a facebook post about his status.  Being friends with many lawyers in Massachusetts and all over the country, the attorney’s facebook post was typical of many attorney posts that I have seen on my newsfeed.  The Massachusetts Board of Bar Overseers found that this case violated the rules of professional conduct.

It seems so innocuous.  An attorney updates his public Facebook page stating: “Back in Boston after appearing in Berkshire Juvenile Court in Pittsfield on behalf of grandmother who was seeking guardianship of six-year-old grandson and was opposed by DCYF yesterday.  Next date – 10/23.” But is it so innocuous?  Is the Facebook post simply an update of the day in the life of an attorney? Or is it enough information to run afoul of the Rules of Professional Conduct. On November 6, 2019, the Massachusetts Board of Bar Overseers (BBO) publicly reprimanded the attorney who wrote this post.

This is the type of situation every attorney must navigate daily. Social media forums allow attorneys to connect with potential clients, advertise the types of law practiced, comment on new case law, etc. Regardless of an attorney’s age, experience, or length of practice, an attorney is required to stay up to date on new technology (Rule 1.1).  In today’s world, it could be argued that Facebook, established in 2006, is not a new technology, and all attorneys should be aware of the pitfalls of any client-related posting on Facebook.

At first glance, this post appears to simply update of the location of the attorney.  He seems to be announcing to the world that after some time in Pittsfield in Juvenile Court he had returned to Boston.  He’s announcing to the world because this particular post had no privacy settings, meaning anyone could access it.

How did the Board of Bar Overseers become aware of the Post?  

The attorney had represented the client in a contentious Care and Protection case in September 2015, which is the subject of the Facebook post.  The client was awarded guardianship of her grandson in mid-December 2015.  Four days after she was awarded guardianship, she became aware of the Facebook post but did not discuss it with the attorney.  The client then hired the attorney to represent her in a divorce case.  It was not until March 2016 when there was a disagreement between the client and the attorney as to whether she should immediately turn over financial records for the divorce proceeding that the client told the attorney she was aware of the Facebook post, stating that unless the attorney agreed to terminate the attorney-client relationship, she would file a complaint with the Office of Bar Counsel.

An evidentiary hearing was conducted to determine if the attorney’s Facebook post violated Rules 1.6(a) and 8.4 of the Rules of Professional Conduct.  The recommendation that the petition be dismissed relied on an interpretation that Rule 1.6(a) could not be violated if the information could not be reasonably linked to the client.  The Bar Counsel appealed the recommendation, leaving the BBO to determine if the attorney violated the Rules of Professional Conduct and, if so, what punishment was in order.

 

The BBO took notice that the disclosure was not just a Rule 1.6(a) violation, but that it was also unlawful under GLC 119, §38.  The attorney posted about a Care and Protection case held in Berkshire Juvenile Court.  Care and Protection cases are closed to the public, and revealing the names of those who appear in a Care and Protection case is unlawful. Although the attorney did not reveal names, the BBO cited the public policy purpose of keeping Care and Protection cases confidential.  Although the statute makes it unlawful for anyone to disclose information, an attorney would be held to a higher standard if he disclosed such information.  The attorney in this matter had approximately 40 years of experience and would have been aware of the need for privacy in Care and Protection cases.

Duty of Confidentiality and Social Media Posts

The BBO did find the attorney had violated Rule 1.6(a) by disclosing information that the client herself would recognize as her case.  Comment 3A to Rule 1.6(a) of the Rules of Professional Conduct defines “confidential information” as including information an attorney gains during or relating to the representation of a client that is “likely to be embarrassing or detrimental to a client if disclosed.” The BBO explained that “there is no requirement that a third party actually connect the dots” for the post to be a violation.

 

In finding that the attorney had violated Rule 1.6(a), the BBO then looked to see if any mitigation or aggravating factors should impact the punishment.  The BBO distinguished a public Facebook post from a post to a closed Attorney listserve, where the attorney could have been soliciting advice from other attorneys. The BBO found no “legitimate analogy” between the Facebook post and “shop talk,” which is permitted under Comment 4 of Rule 1.6(a). There was an attempt to paint the attorney’s length of practice and no previous complaints or violations as mitigating factors. However, the BBO used the attorney’s experience as an aggravating factor as he had been practicing for almost 40 years.

There was also an attempt to use the vagueness of the post as a mitigating factor.  The BBO looked at the original post as well as the follow-up comments and the tone of the comments.  In replies to comments, the attorney revealed that the client had lost custody of her grandson two months ago and that the child had been placed in four different foster homes since his removal from the client’s home.

“The post is no different than publishing the facts in a newspaper or broadcasting them on television,” and thus, the attorney was subject to a public reprimand.

The lesson here is this:  If you post on social media information that the client can recognize as themselves, and the client has not permitted you to post the information, you could violate the Rules of Professional Conduct.

This is an interesting case for all attorney to be aware of.  It seems to suggest that you cannot publish any information about your status without potentially running afoul of the ethics rules if your client objects.  I would interpreter the opinion to allow a post about the lawyers status if the post was so vague that the client could not pin the post to the client’s situation.  It will be interesting to see if this issue is appealed to the Massachusetts SJC for further clarification on the permissible scope of social media posts.  To Learn more about current issues in Massachusetts Criminal Law you can follow attorney DelSignore on Facebook at DelSignore Law.

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