Lawyers — just like everyone else these days — tweet about legal issues, including their own cases, public events, and other lawyers. As the use of social media to conduct business continues to rise, this practice will increase in kind. Studies show that as of May 2020, Twitter users sent approximately 6,000 tweets per second. That’s 500 million tweets per day and more than 200 billion tweets per year.1 Roughly 7 out of 10 adults in the United States use social media; about 75 percent of them use Twitter daily.2 Recent studies conducted by The American Bar Association (“ABA”) suggest that 75 percent of law firms use social media and that lawyers primarily use LinkedIn, Facebook, and Twitter for when they want to post on social media.3
On one hand, social media’s vast accessibility provides a necessary vehicle to fulfill an aspirational goal of the profession: to enhance public information and knowledge about the legal practice.4 The Preamble to the Ohio Professional Rules recognizes as much:
A lawyer should seek improvement of the law, ensure access to the legal system, advance the administration of justice, and exemplify the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.5
At the same time, while attorneys increasingly use social media platforms in their practice, they must remember that the Professional Rules apply online.6 In fact, the same widespread use of social media that allows for greater public accessibility may increase the need for professional vigilance, given how a single tweet can become frozen in time.
For example, confidentiality issues arise when attorneys post about their own cases. Ohio Prof.R. 1.6(a) provides as follows:
A lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by division (b) or required by division (d) of this rule.7
Comment 4 to this Rule further provides that this provision applies to “disclosures that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”8 While lawyers may use a hypothetical to discuss issues, they must ensure that “there is no reasonable likelihood the listener will be able to ascertain the identity of the client or the situation involved.”9
Unless the Rules directly authorize disclosure, the ABA has advised that “[l]awyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by Rule 1.6(a), including information contained in a public record, unless disclosure is authorized under the Model Rules.”10 In other words, information contained in court proceedings, while public, are not exempt from the lawyers’ duty of confidentiality.11
So, while attorneys may believe they are only speaking hypothetically when posting about their cases, this does not render them immune from ethical sanctions. Consider, for example, the case of Bar Counsel v. Frank Arthur Smith III, in which the Massachusetts Board of Bar Overseers publicly reprimanded an attorney for social media posts that violated Massachusetts Professional Rule 1.6.12 Smith represented a client in a petition seeking guardianship of her minor grandson. After attending a hearing in juvenile court on the matter, Smith posted comments on Facebook about the hearing, in which he named the county, the court, and described his client as a “grandmother who was seeking guardianship of her six-year-old grandson.” He further relayed that the DFC opposed this guardianship and stated the date of the next hearing. The post precipitated questions in the comments, which prompted Smith to respond with additional information, including the fact that the minor was in his fourth foster placement since he was removed from his grandmother’s residence.
The client’s daughter recognized these posts as pertaining to her family situation and had a conversation with her mother (Smith’s client) about the posts. After a dispute developed between Smith and the client, the client filed a bar complaint. The Massachusetts Board of Bar Overseers determined that these posts could likely be embarrassing or detrimental to the client, and therefore violated Rule 1.6. The Board rejected Smith’s argument that the posts did not reveal sufficient information to breach confidentiality:
Even if there were no evidence that a third party actually recognized the client in the post, we would still conclude that the respondent had violated Rule 1.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Facebook, the friend would learn about the “grandmother” and her litigation with DCF. There are numerous other reasonable scenarios.13
As this case clearly demonstrates, attorneys who engage in social posting about their own cases must be wary of the ethical lines imposed by the Professional Rules. Further, rather than play too close to that ethical line — as it moves and changes with the advancement of technology — attorneys should endeavor to abide by the aspirational goals of the profession. As recognized in the Preamble to the Ohio Professional Rules:
Lawyers play a vital role in the preservation of society. A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.14
Social media can be a great vehicle for attorneys to keep the public informed about the legal system. Conversely, attorneys need to balance their aspiration with the concrete rights of their clients’ confidentiality. An appropriate balance will protect the public’s faith in the legal system in the ever-changing dynamics of social media.
Longtin is employed as a Staff Attorney with the Cincinnati Insurance Company. She is currently the Chair of the CBA’s Committee on Ethics and Professionalism. Lynne has been a member of the CBA since 1999.
1 Jacobowitz, Jan L., 11 St. Mary’s J. Legal Mal. & Ethics 312 (2021), Negative Commentary – Negative Consequences: Legal Ethics, Social Media and the Impact of Explosive Commentary, p. 330.
2 Id.
3 Id. at 331.
4 ABA Formal Opinion 480, March 6, 2018; Confidentiality Obligations for Lawyer Blogging and Other Public Commentary: “Online public commentary provides a way to share knowledge, opinions, experiences and news.”
5 Ohio Professional Rules of Conduct, Preamble, Section 6.
6 ABA Formal Opinion 480: “While technological advances have altered how lawyers communicate, and therefore may raise unexpected practical questions, they do not alter lawyers’ fundamental ethical obligations when engaging in public commentary.”
7 Ohio Prof.R. 1.6(a)(Emphasis in original.)
8 Id., Comment 4.
9 Id., Comment 4.
10 ABA Formal Opinion 480.
11 Id. “Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.” (Emphasis in original.)
12 Bar Counsel v. Smith, Public Reprimand 2019-16 (Mass. No. 6, 2019), https://bbopublic.blob.core.windows.net/web/f/pr19-16.pdf
13 Id. at p. 7. (Emphasis in original.)
14 Ohio Rules of Professional Conduct, Preamble, Section 5.