The lawyers' right to tweet

An article in the February 25th edition of the ABA Journal presents an issue at the very core of this blog.

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The statement which is of particular interest is George Washington University Law School Professor Jonathan Turley’s response to the firing:

He stated:

"There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen."

The issue that we must struggle with is whether lawyers, as “officers of the court” are ever really considered to be private citizens. It is clear that, as lawyers, were are held to the state bar’s Rules of Professional Conduct 24 hours a day, 7 days a week. Our bar cards are not retired for the evening when we leave the office. Indeed, there is no question that lawyers are held to a higher standard than laypeople. Therefore, while the firing of a layperson might otherwise be an infringement of the First Amendment right to Free Speech, a separate analysis must be conducted with regard to lawyers.

When a lawyer speaks, even if not done on company time, he or she is representing not only the company that they work for, but also the law. Here, there is not only an issue that Cox was an attorney, but also that he was employed by the Indiana Attorney General’s Office. Therefore, not only was his statement made as an officer of the court, but also, as a State employee.

In this situation, I believe the waters are further muddied by the State+officer of the court combination. While it could be argued that as officers of the court we have a greater right than the layperson, due to the fact that we know the law, where the State becomes involved, the issue is framed in a significantly different manner.

It comes down to the issue of professionalism: How can the general public feel safe that such a man represents the State in court? How can they ensure that their tax dollars are adequately being spent? What sort of message does the tweet send to the general public about he sort of attorneys that represent the state?

**A screenshot of the actual tweet that caused Cox to be fired.

Good lawyers use facebook

This is an expansion to an earlier post regarding attorneys using google during the voir dire process of jury selection.

Basically, the message here is that budding attorneys better get on the social network bandwagon, if they have any hope of rising to the top. All the more reason to make sure that we are acting ethically in the process of using social media.

Further evidence that anonymous blogging presents issues for lawyers

This article raises the very point I was making in this blog entry.

Ghostblogging might be a risk to law firm reputation

Law firms risking reputations for ghostblogging

Ghostblogging presents a myriad of issues. Speaking from the standpoint of legal ethics, Model Rule 5.3 is a genuine concern.

Lawyer blogs banging down the door of potential clients.

In this blog I discussed whether lawyer blogs fit more closely in the category of in-person solicitation, or direct mail. While I concluded that there is no categorical rule the court can use to decide where lawyer blogs fit, Florida Bar v. Went For It [1] might provide some guidance on the distinction.

In Went For It, the Florida Bar adopted new standards as part of a 1989 study regarding attorney advertising. These standards placed a 30 day moratorium on direct and indirect lawyer solicitation of accident victims and their family members. Plaintiff, Stewart McHenry, owner of Went For It, Inc, a lawyer referral service, filed suit, arguing that the regulations were a violation of his First and Fourteenth Amendment rights to the United States Constitution.

In holding that the Florida Bar regulations on advertising were constitutional under the First Amendment, the court stated:

We have always been careful to distinguish commercial speech from speech at the First Amendment’s core. Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values. And is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.

Accordingly, the court applied the intermediate scrutinyCentral Hudson test:

1. The government must assert a substantial interest in support of its regulation;
2. The government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and
3. The regulation must be narrowly drawn.

First, regarding the government’s substantial interest, the court listed three government interests it deemed as substantial:

1. The government’s interest in establishing licensing standards;
2. The protection of well-being, tranquility, and privacy of the potential clients’ home, and
3. States can legislate to avoid intrusion

The court highlighted the main interest of the State as protecting the well-being, tranquility, and privacy of the potential clients’ home. The court reasoned that the purpose of the ban is to “forestall the outrage and irritation” with the legal profession when the victims have the accident fresh in their minds. Therefore, the court emphasized its concern for the appearance of the lack professionalism where an attorney makes direct contact with a recent accident victim.

Next, regarding the material advancement of the government’s interests, the court indicated that the State provided statistical and anecdotal data which displayed the fact that the Florida regulations would further the State’s goals.

Lastly, regarding whether the regulations best “fit” to serve the State’s interests, the Court stated that there is no other alternative in regulating the speech in a less restrictive way. Furthermore, the regulation merely imposes a moratorium; it does not impose an outright ban.

The court distinguished this case from Shapero in several ways. First, unlike Shapero, the treatment of the potential client’s privacy was casual. Next, Shapero dealt with a broad ban on all advertising, rather than a mere moratorium. Lastly, the State in Shapero did not give any evidence of actual harm caused by targeted direct mail.

The question remains with respect to blogging: Is the regulation of blogging constitutional under the First Amendment? Due to the inconsistency of Supreme Court’s rulings with respect to attorney speech, the answer to this question becomes even fuzzier than it would otherwise be.

Putting all of the attorney cases together, we know:
1. The Central Hudson test is the current test for determining whether attorney speech regulations are constitutional under the United States Constitution;
2. The ban of in-person solicitation of clients is constitutional under Ohralik;
3. Outright bans on attorney advertising via direct mail are unconstitutional under Shapero;
4. 30 day moratoriums on attorney advertising via direct mail are constitutional under Went For It.

As discussed previously, lawyer blogs could arguably be either direct mail or in-person solicitations. While Went For It did not provide any distinction between in-person and direct mail analysis, the court provided clarification to Shapero when it discussed the fact that the privacy of the individuals in their homes is the most important interest due to the issue regarding the appearance of attorney professionalism.

In the blogging context, this is especially troublesome. While lawyers are not approaching potential clients in the traditional sense, a lawyer can “approach” a client over the internet. While sending an advertisement in the mail can make this same level of contact, the level of privacy over the internet is much more concerning. Unlike direct mail, a lawyer can contact a potential client in real time, meaning that the lawyer can, if they wish, speak to the client as the client is in the privacy of their own home, while they are in their own home. A potential client can choose not to look at lawyer blogs. However, with the invention of such sites as facebook, this becomes increasingly more difficult. Facebook give the availability of advertisers to see what people might be interested in.

Here is an example:

If any of the links are clicked on, a person would be led to that site’s page. The court’s main concern with the lack of privacy is that professionalism of attorneys may suffer due to lawyers’ ability to contact potential clients when they are at their most vulnerable. Is this concern any lower for lawyer blogs? Certainly not. Therefore, I would argue that state bar regulations for lawyer blogs that are no more restrictive than the standards set forth in Went For It would not only be recommended, but constitutional. In addition, it is my opinion that the restrictions should be at least as restrictive as those in Shapero. Even though the restrictions were held as unconstitutional in Shapero, lawyer blogs are more intrusive on a potential clients’ privacy.

[1] 518 U.S. 618 (1995).

Google=a trial lawyer's new second chair

Thus is not directly related to the issue of social media, but this does present the very point to which this blog speaks. Technology has changed the way we practice law. Instead of pretending that the practice of law is, in 2011, what it was in the days that the Rules of Professional Conduct were created, we must embrace the new era.

Social media =/=In person contact

I found Nicole Black’s response to the September paper on Ethics 20/20 to be intriguing. Her thesis to the September paper focuses on the fact that “[o]nline interaction simply is an extension of offline interaction. It does not, by virtue of its unique format, merit a separate category requiring additional, more stringent oversight. ” [1]

I believe this characterization of social media drastically oversimplifies the medium. As I have discussed previously, at length, the differences between blogging and face-to-face interaction are numerous. The largest difference is this: face-to-face, it is significantly more difficult for a person to pretend to be someone they are not.

Let’s take the following example: A male lawyer enters an accident victim’s hospital room. He is middle-aged and disheveled-looking. He tells the woman he can represent her in a lawsuit against the driver of the other car. The accident victim takes one look at lawyer and realizes that he can’t be trusted. The accident victim tells the lawyer to leave her room.

Now take this same example, but over the internet: A lawyer links an accident victim to his blog via facebook. The lawyer pays for services on facebook that allows his blog address to show up on the sidebar of anyone who mentions car accidents on their facebook. The woman clicks the link, and is lead to the same lawyer’s page as example #1. The picture on the blog contains one taken of the lawyer from 15 years ago, wearing a fresh-pressed suit, with a fresh haircut. The woman decides this is a man she can trust to represent her.

While there is little that can be done with respect to how images are perceived over the internet, the fact is that, arguably, the woman may have felt more coerced after being contacted over the internet than she was when the lawyer came to visit her face to face.

Not only is there an issue over the appearance of the attorney, there is also the issue of a perceived feeling of safety while on the internet. Due to the perceived anonymity, people feel as though they can be genuine on the internet; therefore, they feel that others are also being genuine. This is obviously a fallacy on both counts; however, it may result in greater use of coercion over the internet than would have otherwise existed in person.

Therefore, I would conclude that, while the actual degree of the new rules is still somewhat uncertain. However, one conclusion is certain: the current ABA rules do not adequately address lawyers’ use of social media. It follows that the rules need to be amended, or new rules must be created to meet the growing need for such regulations.

[1]COMMENTS, Technology Working Group Issues Papers, “Client Confidentiality and Lawyers’ Use of Technology” & “Lawyers’ Use of Internet Based Client Development Tools” , Nicole L. Black, p. 10-11