The world has changed in the past few years. All of us think nothing about tweeting or posting about what we did, what we saw, what we ate or how we feel almost as soon as it happens. Sometimes if makes us feel good to air publicly arguments or disagreements when we perceive that we were treated unfairly.
Your parents may have told you: “Sticks and stones may break my bones, but words will never hurt me.” Honestly, this is one of the most BS lessons you can teach to a young child. Of course, it’s beneficial to teach young folks to have the self-confidence to not let bullies win, but this life lesson also neglects to address the concept of thinking before speaking and choosing your words carefully before communicating—both orally and in writing.
In the digital age of constant connectivity via group chats, social media, email, FaceTime, etc., there are limitless opportunities to exercise your right to Freedom of Speech and for your voice to be heard by more people. But with great opportunity comes great responsibility. It is ridiculously easy to share a news story on Facebook loaded with false information, subtweet your ex after a rocky breakup, or send a spiteful email to a client who's getting on your last nerve.
While this is all well in good in our personal social life, it can have consequences for attorneys when it is a client matter.
Attorneys have a duty to keep client matters confidential. To publicly air your grievances against a client or a judge will get you in hot water. Once you start publicly airing client matters an attorneys risks violating ethical duties to that current or past client. Last thing you want to do is when you are mad is start posting about your professional dealings. You might feel better inside when you type it up, but once typed up it is best to hit the delete button, not the send button.
The Supreme Court of Colorado suspended an attorney who engaged in an online exchange with former clients in two separate matters:
1. The couple was dissatisfied with their representation on a lease and terminated the relationship. The couple filed a complaint with the better business bureau. The attorney publicly replied by shaming the couple and making accusations based on confidential information from the representation.
2. A married couple retained the same attorney to assist with the husband’s post decree dispute after a divorce from his former spouse. After billing disputes, the couple terminated the relationship and posted complaints about the attorney on various websites. The attorney responded by posting his own comments about the clients that disclosed sensitive information about the representation.
In Illinois, an attorney was taken before the Attorney Ethics board because the attorney publicized information regarding his representation of a client. The attorney’s article was about a discrimination case in which he represented an employee against his employer.
The disciplinary action against the attorney was based on critical comments made in the article regarding the trial judge. While the board determined that the statements regarding the judge did not criticize in a manner that prejudiced the administration of justice, the board nevertheless concluded that the attorney committed an ethics violation by not obtaining the client’s consent before publishing the article. The board stated consent was required because the article mentioned the client by name. The attorney appealed the ethics decision to the State Supreme Court, which ruled that the attorney didn’t need his client’s prior consent because the information published was publicly available, and dismissed the charges.
In this case the attorney’s conduct did not warrant disciplinary action. But even in victory the time spent in defending the attorneys action, takes away from the time spent being able to practice law.
Attorneys must act cautiously when posting information regarding representation. Disclosures of confidential information, absent client consent, could violate the rules of professional conduct leading to costly disciplinary action.