Social Media vs. Client Confidentiality

Michael Downey’s article in the most recent issue of the ABA Law Practice Management’s Law Practice magazine raises an issue concerning the effects of social media on client confidentiality:

[T]he constant push for lawyers to post Internet content—blogging, tweeting and the like—substantially increases the risks to client information.

A great illustration of a lawyer generating Internet content to attract clients is Hunter v. Virginia State Bar, No. 121472 (Va. Feb. 28, 2013). In Hunter, a lawyer blogged about criminal cases he handled for clients without the clients’ permission.

A hearing panel found this unethical, but the Virginia Supreme Court reversed, concluding that a lawyer could report on publicly disclosed information at a client’s criminal proceeding without client consent. “To the extent [this] information is aired in a public forum,” the Hunter court explained, “privacy considerations must yield to First Amendment protections.”

Sign of the future? Hunter’s holding may be rejected as unpersuasive by other courts. Yet Hunter serves as a powerful reminder that lawyers and law firms may be inclined to promote their firms by revealing client confidences.

No doubt, social media create new ways in which lawyers can commit ethics violations, and new opportunities for them to do so. However, these pressures are not qualitatively different from those of years past. Unethical lawyers could always breach client confidences in articles, speeches, or even informal marketing pitches. Ethical lawyers didn’t then and won’t now.

Awareness of any intensified risks is great, and I commend Mr. Downey, but let’s be careful to avoid letting welcome conscience-raising descend into what Kevin O’Keefe has correctly described as “lawyers scaring lawyers from using social media.”

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