“Sticks and stones may break your bones, but words will never hurt you,” admonished every single mother, I imagine, for the entire history of human kind. It’s probably even in some of those ancient cave glyphs that have been found. It’s a fundamental tenet of New Testament Christianity, that one will demonstrate their strength in their ability to “turn the other cheek,” to refuse to dignify the petty assault of another.
Today, it seems sometimes like it would take the internal, divine fortitude of a deity to handle some of the fierce attacks that one can find almost daily on Twitter or Facebook.
Then one morning, you’re flipping past pictures of your friends’ kids on Facebook, when you see that one of your former clients, unhappy about the result of their case, has decided to post a comment on your firm’s page calling you…
Hey, let’s face it, today’s social media allows anyone to say pretty much anything, and to do so before their “better angels,” so to speak, can prevent them. It’s done on accident all the time! Yesterday, even Dr. Phil (allegedly) had to delete a post from his twitter account after a poorly thought out question led some to wonder whether he was condoning rape if the woman was intoxicated (I’m pretty sure he doesn’t, but you get it).
Another fact of life we all have to deal with is that there will ALWAYS be clients who will be upset with the services we, as attorneys, provide. So you’ve received some really nasty reviews from a former client, that you consider to be totally off-base. You’ve taken your therapist’s advice and allowed yourself to cool down for a while, but you have decided that you REALLY need to respond. Here are a few things to ask yourself about the post you are about to write:
1) Does it contain any confidential information?
Sure, this one seems obvious, but it’s still something you had better think about. You rationalize that by saying you did such a crappy job, the client has clearly waived any confidentiality about retaining your legal services. But did the client discuss what type of services in their attacks? Did they discuss the length of time your representation was for, or the dates of consultations? Did the client discuss the actual results of your representation? Remember that without a judgment entered in court, there is likely at least some form of confidentiality agreement in place regarding the outcome of your representation. Bear in mind that even though most ethical rules do not explicitly contain language addressing social media, in general, the same rules still apply.
Ok, you’ve written your response, and you are quite certain that it does not contain any confidential client information…
2) Will publishing your response cause harm to your former client?
Why should I worry about that, you think to yourself. After all, it’s the former client that is spewing lies about the quality of my legal skills all over the internet!
Well, you should worry about it because ethics boards worry about it. “And when Mr. Bigglesworth gets upset, people die!” States that have adopted the ABA’s Model Rules of Professional Conduct (read: everywhere other than California) require that attorneys not perform any action that would cause any harm to that former client. Ethics rules in California, even though not based on the model rules, agree that any response to a former client must not cause any harm to the former client. So before you publish your response, make sure that nothing you say could potentially cause some form of injury or harm to your former client.
So you’ve checked your response again, taken out all of the language calling the former client a miserable liar and mocking his absolutely ridiculous hair piece…
3) Are you issuing a response, or starting a debate?
Your client started this war, so you’re going to end it. At least that’s your rationalization. We all know that the internet is THE place to go for rational discussion and level-headed arguments, supported by evidence and written with proper grammar. But maybe your client takes your response as an invitation to a debate, rather than simply an attempt to set the record straight. How does that affect your ability to respond?
All states recognize the right of an attorney to reveal confidential client information, to the extent necessary, to protect an attorney against claims of malpractice or as defense against other claims by the former client. However, it is unclear exactly what types of forums that right applies to. The Model Rules seem to contemplate some sort of judicial or professional forum, such as a trial or a proceeding before an ethics board. Does the “court of public opinion” count with regard to an attorney defending against attacks by a former client? Ethicists are having quite a difficult time deciding these issues.
What’s my point, you ask? Let’s say that your perfectly crafted response, which omits any and all confidential information about the client except that he was your client, causes the client to shoot back another response. This response, filled with accusations and innuendos, raises new questions about your adherence to certain ethical standards and competence to perform basic tasks, such as tying your shoes. What then? (One should probably also question the intelligence of actually engaging a disgruntled client, as it may lead to consequences far more serious than an ethics charge, but that’s not the point of this article.)
Remember, you duty to avoid causing harm to your client doesn’t end simply because they decided to continue the debate.
4) Are there better ways to address the problem?
The biggest problem with responding to criticism on a social media site is that there is no editorial barrier between you and the general public, no one to suggest that maybe this isn’t such a good idea. The release of confidential client information is a serious concern when there is no barrier, and the consequences are quite severe. A Georgia court found a public reprimand of an attorney who revealed client confidences on Facebook to be insufficient punishment, a public defender in Wisconsin was suspended for 60 days for blogging about her clients, and punishment for a lawyer in Virginia was upheld where he had published information regarding pending cases in his firm’s blog.
So before you post your response, check your other options. Most social media sites have policies and procedures regarding the types of content they will allow to remain published. If the former client’s post contains inflammatory or lewd content, flag it and request that it be removed. If the client posts comments on your own page, just delete them.
Post your response as a last resort, and remember that sometimes the best way to counter a raised voice is to speak calmly. Among the groups that have addressed this issue, the Los Angeles County Bar Association held that, among everything else, an attorney’s response to a post on social media must be “proportionate and restrained.” Sounds like good advice, even in jurisdictions where it isn’t also the law.
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