The explosive growth of social media has given attorneys more platforms for engaging in instantaneous public communication and reaching larger audiences. However, the informality of this modern megaphone may tempt some attorneys to overlook the potential risks for clients. As lawyers use social media to communicate about legal matters, we should step back and make sure we understand the impact that it has on our professional relationships and our duties to our clients.
We learn early in our careers that one of our paramount duties is to protect our clients' confidences and information. California Rule of Professional Conduct 3-100(A) states that a "member shall not reveal information protected from disclosure by Business and Professions Code section 6068(e)(1) without the informed consent of the client." That section requires an attorney to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."
The duty of confidentiality forms the backbone of the attorney-client relationship and encourages trust and candor, such that the lawyer can provide the best advice and representation possible.
It might seem obvious that recounting client communications on social media sites is forbidden - a clear violation of the duty of confidentiality. Further, even if attorneys do not disclose client communications in their postings, they could inadvertently share other personal information about their clients that should remain confidential.
It is common for attorneys to share "war stories" or inspirational accounts. However, lawyers must consider whether the information they reveal is sufficiently specific to make the parties involved readily identifiable. The following is a fictitious Facebook post inspired by a real one written by a long-time attorney: "Just spent three hours with a new client who literally faced death and won. He was in the hospital for a year after fighting cancer, having brain surgery, and lying in a coma. After an unbelievable recovery, he discovered that his wife was leaving him. He told me that his children give him the courage to get stronger each day. Meeting him today, I feel overwhelmed and blessed."
Though clients may inspire attorneys with their grace and fortitude, providing a detailed recap of their confidential communications regarding deeply personal matters and medical information is a violation of their trust and a breach of the attorney's duty of confidentiality and attorney-client privilege. No matter how uplifting or amusing clients may be, attorney-client communications are privileged and have no place on Facebook or any other site. Attorneys who post such information may face discipline or even a malpractice suit.
Attorney-client communications are to be zealously guarded. When responding to discovery or defending a client at deposition, attorneys will vociferously object to any intrusion into privileged communications, whether the intrusion is by opposing counsel or another party.
It is no less a problem if clients reveal attorney-client communications on their own social networking sites. At the outset of the relationship, the attorney should teach the client about the attorney-client privilege and the importance of not disclosing such communications to others, including on social media.
Attorneys should consider updating their initial client instructions and engagement letters to contain a warning about social media. They should caution clients against disclosing confidential information to others via any means, including social media, emphasizing that the information clients share online is not considered private and may be discoverable. (See Moreno v. Hanford Sentinel, Inc.
172 Cal. App. 4th 1125, 1130 (2009).) Clients should be advised that their litigation opponents may troll social media looking for information about them. Raising these issues with clients at the outset of an engagement, both verbally and in writing, can head off problems down the road.
Sunny S. Shapiro is special counsel in the San Francisco office of Sedgwick LLP, where Steven D. Wasserman is a partner.