38th National Conference on
Professional Responsibility
Old Rules:
New Tools
The Challenge of Social Media for
Bar Associations and Lawyers
Simon Chester (Moderator)
May 31 2012
Table of Contents
Social Media Networking For lawyers: A Practical Guide to
Facebook, LinkedIn, Twitter and Blogging by Simon Chester
and Daniel Del Gobbo ................................................................... 3
Facebook.................................................................................. 4
Linkedin .................................................................................. 5
Twitter ..................................................................................... 6
Blogs......................................................................................... 7
Google+ ................................................................................... 7
Specialized Legal Communities .......................................... 8
The Ethical Maze .................................................................... 9
How to Create a Law Firm Social Media Policy by Simon
Chester and Daniel Del Gobbo .................................................. 11
Law Firm Online Activity Policy by Michael Downey .......... 15
Unofficial Online Presence of Law Firms ......................... 15
Sample Online Activity Policy. .......................................... 17
Conclusion ............................................................................ 28
The Ethical and Liability Implications of Social Networking
by Jeffrey T. Kraus ....................................................................... 29
Introduction .............................................................................. 29
Social Networking and the Rules of Professional
Conduct ................................................................................. 30
The Attorney-Client Relationship ......................................... 30
Confidentiality Issues .......................................................... 30
Conflicts of Interest.............................................................. 32
Unauthorized Practice of Law ........................................... 33
Advertising and Solicitation .............................................. 33
The Duty of Candor ............................................................. 35
Managerial Responsibilities ............................................... 38
Professional Liability Concerns ......................................... 38
Conclusion ................................................................................ 40
Transcendental Lawyering - To Boldly Go Where No Lawyer
Has Gone Before: The Interrelationship between Ethics and
Social Networking by James S. Bolan ....................................... 41
Application of Disciplinary Rules to Cyberspace ........... 41
Do Not Inadvertently Create an Attorney Client
Relationship .......................................................................... 41
Conclusion ............................................................................ 46
ABA Commission on Ethics 20/20 Revised Draft Resolutions
for Comment — Technology and Confidentiality, February
21, 2012 .......................................................................................... 47
American Bar Association, Standing Committee on Ethics
and Professional Responsibility, Formal Opinion 10-457
August 5, 2010, Lawyer Websites .............................................. 66
North Carolina State Bar Association. 2011 Formal Ethics
Opinion 10, October 21, 2011, Lawyer Advertising on Deal of
the Day or Group Coupon Website .......................................... 72
Hunter v. Virginia State Bar et al: 3:2011cv00216, 786 F. Supp.
2d 1107 (Dist. Court, ED Virginia).............................................74
Social Media Networking For lawyers: A Practical Guide to
Facebook, LinkedIn, Twitter and Blogging by Simon Chester
and Daniel Del Gobbo
Law Practice Magazine, January-February 2012, Volume 38 Number 1
What a difference five years makes. Social media has exploded.
Over 800 million people now connect with each other using
Facebook—more than one-half on a daily basis. And hundreds of
millions more connect using other social networking websites like
LinkedIn, Twitter and YouTube, just to name a few. News feeds
report stories live in real time. Blogs are often the fastest and best
source for cutting-edge legal commentary.
And the tools are constantly evolving. Smartphones and tablets
(such as iPads) allow people to access online content and post
updates 24/7 from anywhere they have a wireless or cell
connection. The rise of social media has fundamentally changed
how we all communicate in both our personal and professional
worlds.
Younger people today have grown up with technology all around
them, and it is intertwined in every aspect of their lives. Nearly all
the younger lawyers at your firm will have Facebook profiles they
check daily, many will have already uploaded their résumés on
LinkedIn and some may tweet links to online content of some sort.
And social media is not the exclusive preserve of the young.
Networking sites are seeing a spike in adult membership,
including senior lawyers.
How are law firms approaching social media? Just two short years
ago, the appropriate law firm response to social media was still
being debated. Like any other change in law firm policy or
operations, getting to consensus was painful. It’s no secret:
Lawyers don’t like change.
At the outset, firm management simply didn’t know what to make
of these tools. IT professionals expressed concern over security
lapses and breaches of confidentiality. Marketing directors feared
that firm image would be compromised by the improper use of the
firm’s logo or imprudent 25-year-olds engaged in flame wars. HR
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people assumed staff would go online and waste valuable work
time.
The typical response: Access to MySpace, Facebook and instant
messaging was routinely blocked. Blogs were viewed with
suspicion. Few firms saw the need to develop coherent social
media policies to guide the use of these new-fangled
communication tools, let alone to encourage experimentation or
allow staff to use them.
But times have changed. Given the trends noted above,
engagement with social media has become a functional imperative
for all law firms. Lawyers are beginning to realize the potential of
social media to market their services, build connections with other
lawyers and potential clients, or gather and share information
about the law and practice. So the question now is not whether law
firms can engage with social media, but how? Creating a policy
that gives law firm lawyers and staff clear direction on what they
can and can’t do is essential.
The morass of social media services may seem bewildering— there
are thousands of them—but with a bit of research and guidance
you can sort out which ones have the potential to do something for
you and your firm.
Here is a quick overview of the four main social media tools you
should consider using: Facebook, LinkedIn, Twitter and blogs.
Facebook
Facebook is becoming the social and communications hub for all
aspects of the lives of millions of people. They use it to share
information with friends and work colleagues, and it is their
preferred means of communication. For many, Facebook’s private
message feature is replacing email.
As the largest social networking site on the Web, Facebook poses
opportunities and challenges for lawyers and law firms. Any place
where you can meet 800 million unique people is clearly a lucrative
marketing opportunity. And while initially, most people saw
Facebook as a personal networking tool, it is being used
increasingly as a successful business marketing tool as well.
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But herein lies the challenge many lawyers will face when they
consider using Facebook. Links to interesting cases or wall posts to
potential clients shouldn’t be sullied by nearby photos of your
sister-in-law’s bachelorette party in Vegas.
Confidentiality obligations imposed by ethics rules make it
awkward, if not impossible, for lawyers to overlap their personal
and professional worlds.
While many lawyers are still scratching their heads—and rightfully
so—some lawyers are making it work for them. Many have a
personal Facebook account and a separate page for their firm. Task
No. 1 for any lawyer using Facebook is mastering the site’s everchanging privacy and personalization settings. You need to
understand and carefully control what the world can see.
Facebook has just introduced its “smart lists” feature, which
automatically assigns friends to categories—work, school, family
and city. Users can then add or remove their friends from
categories after Facebook makes its recommendation. The
functionality and longevity of this feature is still unclear, but smart
lists may be a helpful way for lawyers to separate professional and
personal contacts.
Linkedin
The so-called Facebook for professionals, LinkedIn is in a different
category than many other social media tools because of its express
business focus.
LinkedIn allows users to create public profiles that are much like
Facebook profiles, only without the bachelorette party
photostream. It allows professionals to upload a picture of
themselves—usually the standard company headshot—and most
of the information you would find on a standard résumé, including
employment history, education, skills, publications and awards.
LinkedIn users can see each other’s profiles and connections (called
“contacts”) when they connect to each other.
Smart firms actively encourage all their lawyers to be on LinkedIn
and to actively find real contacts (as opposed to wannabe friends)
by relying on the power of exponential networking to identify
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connections to potential clients. They also request that lawyer
profiles use consistent firm branding and language to ensure they
make a professional presentation. A firm of 20 lawyers who each
have 100 contacts may have more than 2,000 potential contacts at
only one degree of separation. The trick is to connect these contacts
to business development strategies.
LinkedIn is a goldmine for potential firm hires, many of whom use
the site to forge connections with practicing lawyers working in
their desired area. The site offers a number of advanced features,
including status updates, newsfeeds and interactive discussion
forums, which provide a platform for firm outreach and marketing
efforts. Smart law firms appreciate this by soliciting interest in job
openings on LinkedIn. LinkedIn permits users to make
recommendations or to endorse the services and performance of
others, which raises obvious ethical issues.
LinkedIn also has the feature of asking questions of those within
one’s network and responding with answers. This blurs the
difficult dividing line between professional development and the
provision of legal advice.
Twitter
Twitter gives you yet another way to send information to all who
might be interested in things you might say. The interesting and
overriding condition is that all Twitter updates, or “tweets,” can
have no more than 140 characters. Your tweets simultaneously go
to your “followers,” all those people who agreed to receive your
tweets. You can choose to follow anyone on Twitter, including
friends, business associates, colleagues within your firm or even
total strangers. Tweets can be sent from any computer or
smartphone.
Like Facebook, the Twitterverse abounds with users who use the
service for personal communication. But by controlling who you
“follow,” or by setting up a Twitter account using the name of your
firm, you can create an online community of people interested in
the legal content you are tweeting.
Many are skeptical about how short Twitter updates that are just
140 characters long can have any marketing value. However, with
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over 200 million distinct users, few other platforms have similar
instant reach. Tweeting what followers flock to hear is building
reputations and delivering clients to some lawyers.
Blogs
Law blogging, or “blawging,” is a quick and useful way to report
current developments to colleagues, clients and the general public.
The appeal of a blog is how easily and reliably it produces quality
content in a timely fashion. All that a contributor needs to do is
write and click to submit; there is no cumbersome editing process
or having to wait for a print publication. For this reason, blogs
have the potential to provide cutting-edge legal commentary about
emerging issues before the journals. Relative to the other social
media tools, it takes more work to create a blog. The regular
writing you must do to keep posting updates can be a chore, but
the rewards can be large, especially if you establish yourself as one
of the go-to people in a given area of the law.
Many firms are focusing their efforts on firm-wide blogs or practice
group blogs. Enlisting a group of colleagues, usually specialists in a
given area, to commit to posting on a regular schedule helps
spread the writing load around. It also means the blog remains a
firm asset if one of the people posting to it leaves. Blogs with good
reputations reflect well upon the expertise and diligence of
lawyers, and present valuable client development opportunities
from within the readership. They can generate real leads.
And if the mainstream media follows your blog, you’ll find
yourself quoted or invited to comment on television or radio—not
a bad payback for something that requires little out-of-pocket
investment, but your attention and time.
Google+
The newest kid on the social networking block is Google+
(pronounced “Google Plus”). Launched a few months ago, this is
the search giant’s most recent effort at social networking. Google+
allows users to send messages, post links and share photos with
friends, family, etc. The platform’s similarity to Facebook, its main
competitor, is striking.
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Google+ has leapfrogged other social networking sites with its
ability to easily share information with specifically targeted groups
of people, called “circles.” Users can place work colleagues in one
circle, clients in another, and personal contacts in another, allowing
them to tailor their communication to each group. This achieves
the same effect as grouping contacts on Facebook or increasing
privacy settings on rival sites, but in a more streamlined and userfriendly way.
It may be too early to integrate Google+ into your law firm’s social
media strategy. It’s still evolving and finding its way. As of
November 2011, businesses could have a business page on
Google+. And while it has a significant number of fairly geeky
users, Google+ does not yet have a critical mass of mainstream
users. One of the biggest challenges for Google+ is that Facebook
users are completely immersed and pulling them away will be a
challenge.
Smart firms should make clear that their policy regarding the use
of networking sites applies equally to Google+. As Google starts to
integrate all those other Google tools we use every day, more
people will be drawn into using Google+. Keep a close eye on its
growth. The social media landscape may look different in the next
year or two, with Google+ playing a more prominent role.
Specialized Legal Communities
There are social networking sites focused only on lawyers, both inhouse and in law firms.
Legal Onramp is the best known of the sites aimed at legal
professionals, specifically targeted at establishing close Web-based
relationships between corporate counsel and outside counsel. It
requires private law firm lawyers using the service to contribute
substantive content (such as marketing materials) regularly. Access
to Legal Onramp is controlled. Corporate counsel may join as of
right now, but outside lawyers and third-party service providers
need to be invited.
The site currently has over 12,000 members from over 40 countries,
roughly 50% of whom are in-house counsel. Legal Onramp does
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contain closed sub-communities, where discussions can take place
that are not accessible to the general membership.
Martindale-Hubbell Connected is Lexisnexis’ social networking
site for lawyers, which permits the establishment of contact
networks, as well as a rich professional discussion environment.
JD Supra is a Web-based closed community of lawyers in the
private sector and the business world. The prime advantage of all
these services is the quality of the audience—you’re addressing
your peers, and in-house counsel who may just need your services.
The challenge is that it takes work to build presence. You must
engage with the community—work won’t come the way of the
lurkers.
The Ethical Maze
Most lawyers are naturally risk-averse, and there are real risks
associated with the use of social media. Be mindful of how your
activity may trigger the professional conduct rules. Understanding
how those rules and the online networking phenomenon intersect
can help lawyers honor their ethical obligations while they take
advantage of the benefits new media have to offer.
Social media and social networking activities can be problematic
for lawyers because of the potential that their communication
reaches unintended audiences, across state lines and even across
the world.
Here are a few of the ethical traps:
Remember Model Rule 1.1 imposes a basic duty of
competence to clients, and competent representation
“requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
That standard could be breached when spontaneous free
advice is given to a social networking participant quickly
and without appropriate research, especially if the “client”
relies on the advice to its detriment.
Don't inadvertently create an attorney-client relationship.
Be careful that the uploading of contact information does
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not trigger a breach of client confidentiality. Be sensitive to
potential conflicts of interest.
Model Rule 4.1 prohibits a lawyer from making a false
statement of material fact to a third person. Exaggerating
your experience or expertise in a social media profile could
breach this rule. Lawyers would be well advised to be as
circumspect as they would be in a conventional
professional directory.
Using social networking sites to obtain “competitive
intelligence” on a potential witness or opponent without
revealing the lawyer’s true motive could also violate Model
Rule 4.1.
Depending on the nature of the online networking activity,
the unauthorized practice provisions of Model Rule 5.5 may
apply to a lawyer who provides legal advice to a social
networking participant who lives in a state where the
lawyer isn’t licensed to practice.
A lawyer should consider the potential ethical impact of a
judge’s request to join his social networking circle before
responding.
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How to Create a Law Firm Social Media Policy by Simon
Chester and Daniel Del Gobbo
Law Practice Magazine, January-February 2012, Volume 38 Number 1
Many law firms struggle with creating policy for the use of social
media. The generally cautious and conservative nature of law firm
management means that in many cases the decision makers often
see only the real (or alleged) dangers, often without an
understanding of the tools or an appreciation for their potential.
Now that the use of social media is becoming so widespread,
disengagement is not the answer. The issues are not
insurmountable, and being a wallflower lets others gain a
competitive advantage.
All firms should develop a social media policy that encourages the
use of these new and emerging tools in innovative ways. Get input
from all stakeholders and participants by establishing a committee
of your rainmaking lawyers, senior managers, IT experts,
marketers, and members of Gen Y to devise your specific firm
strategy.
The involvement of young minds is essential to the process.
Lawyers unfamiliar with the tools should enlist new associates
fresh out of law school to provide practical tutorials—they’ve
always swum in this sea, and naturally have a different mindset.
Your new associates have also weathered the job market in the
social media age. Ask them how they guard against overexposure
on the Web: What steps do they take? How secure are their
methods? Perhaps maintaining separate profiles is too onerous for
some, with Facebook “smart lists” or Google+ “circles” providing a
better solution.
Law firm policies range from listing overarching principles that
govern the use of Web-based technologies, to listing rigid and
prescriptive rules for the who, what, where, when (and when not)
to engage in social media. You may be tempted to make your
policy restrictive on the basis that it can become more permissive
as lawyers gain experience. This will depend on your firm culture,
but we don’t think curbing enthusiasm at the get-go is warranted
by the business or ethical risks, unless you practice in a jurisdiction
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that has tougher ethical rules. We recommend you develop
something in-between: A varied and dynamic approach tailored to
your practice and the tools your firm will use.
There is a great sample of a law firm social media policy that
includes explanatory annotations in “Law Firm Online Activity
Policy”
(alacapchap.org/resources/webinar0911_SocialNetworking.pdf),
an article by Michael Downey that was published in The
Professional Lawyer, reproduced at page 15.
For each new technology, draft general guidelines on what
information lawyers may share online. Professionalism and ethics
are key here. Always consider how the communication reflects
upon you and your colleagues. Consider how faithfully it
represents your clients’ interests. Consider the implications of
making this information public. You should take a permissive
stance on the subject matter of Twitter feeds, say, and a more
restrictive stance whenever client communications are involved.
Your law firm brand is important. So involve your marketing staff
throughout the process, because it is its responsibility to promote,
protect and enhance the integrity of your brand. Marketing staff
members can offer significant value by training lawyers about
effective communication skills, including how to avoid jargon and
how to frame issues from client perspectives. But it’s best to
prevent your marketers from policing the social networks.
Monitoring is something firms can get paranoid about. Resist
creating a burdensome editorial bureaucracy. Doing so will create
a bottleneck when the thrust of social media is about speed and
spontaneity.
Instead, think about how to balance security with the efficiency of
the tools. If your policy defines the scope of the content to be
published on each site, have faith in your writers to follow it and
do not interfere. These are the same lawyers on whose professional
judgment you and your clients rely every day.
Seasoned bloggers should be trusted to click and submit. Junior
contributors should have their work read by one other editor
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before it goes live. Any more filters than that and your firm’s
communications may lag.
You should set up Google Alerts or RSS feeds to summarize your
firm’s activities on social media sites. Occasionally, it might
happen that clients become concerned about what’s being said, and
in that case you should be prepared when the call comes in.
Develop a regular schedule for each type of media you’re using.
For example, group blog schedules are enforced more strictly than
personal efforts, given the need for constant publication. A team of
10 lawyers might publish an 800-1200 word commentary every
weekday morning, such that each contributor is responsible for
something biweekly. Or the same team might prefer to publish
snapshot summaries, each contributor being responsible for
something every week. You should assign your lawyers soft
deadlines to have written or solicited a post, and allow them to
swap dates if they find themselves overloaded. Have pieces in the
can so that you have content to post in emergencies.
Brainstorm creative ways to generate a readership for your blog.
Consider point-counterpoint features or articles commemorating
special events. Try publishing a weekly blog-roll of content you’ve
read elsewhere on the net—other editors appreciate it and will
remember by cross-linking back.
No matter what the medium, firms should offer real incentives to
lawyers who help with these new initiatives. Within your firm,
regard the social media committee the same as other work in
management, or count non-billable hours docketed as if it were
billable time. Appreciation for the lawyers’ effort should be
reflected in their reward.
And remember that your social media policy will need to be
tweaked as the firm gathers experience and as the tools and
opportunities evolve. Who knows? In six months, your firm might
develop in areas well-suited to social media—privacy, marketing
and advertising, copyright, entertainment, and communications, to
name a few—and a practice group Twitter account might seem like
the easy and obvious fit. And by then will Google+ have surged in
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growth or gone the way of the dodo? Your firm should be alive to
recent trends and adapt its policy accordingly.
Be creative. Be flexible. Have fun with social media. The benefit to
your firm is great if you use the tools wisely.
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Law Firm Online Activity Policy by Michael Downey1
Unofficial Online Presence of Law Firms
Today almost every law firm has an online internet presence. Often
the presence is official and comprised of websites and online
directory listings prepared and vetted by the lawyers or
nonlawyers responsible for the firm’s marketing and risk
management.
Although they may not realize it, almost all law firms also have an
unofficial internet presence. Lawyers and staff create social
network profiles and other web pages that reference the law firm,
contain firm-related pictures or content, and perhaps even discuss
the firm’s activities and clients. Or they post comments that link to
the firm or a firm email address on third-party sites, or feed thirdparty sites (such as AboveTheLaw.com) with firm information and
images.
The creators of a firm’s unofficial online presence are often junior
lawyers and nonlawyer staff such as secretaries, receptionists, or
accounting personnel. They may receive little attention from the
firm’s marketing and risk management staff. Nevertheless, their
online activities can become major sources of promotion or
problems for the firm.
Whether on law-related sites such as Legal OnRamp or MartindaleHubbell Connected, or (as is more common) on general social
networking and miniblogging sites such as Facebook, LinkedIn,
MySpace, or Twitter, or as posts on news or other sites, unofficial
web posts and pages help create and may dominate the online
profile for a firm. They may also create risks for the firm, its
reputation, and its clients.
Published in The Professional Lawyer, Volume 19, Number 4. © 2009 by
the American Bar Association. Reproduced with permission. All rights
reserved. This information or any portion thereof may not be copied or
disseminated in any form or by any means or stored in an electronic
database or retrieval system without the express written consent of the
American Bar Association.
1
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If you have not evaluated your firm’s web presence recently, try
running the firm name through a powerful search engine like
Google as well as through the most common social network sites,
such as Facebook, LinkedIn, MySpace, and Twitter. You may be
surprised how many law firm lawyers and staff are already on
these sites. You may also be surprised – or disappointed – to learn
that a person visiting these very popular sites (Facebook has more
than 150 million users) will receive a very different impression of
your firm than you might intend. This includes:
•
Top-ranked search results are for former employees,
including
those
who
left
in
uncomfortable
circumstances and likely have an axe to grind;
•
Photos of lawyers or staff in embarrassing situations, or
pictures of animals, cartoon characters, crying children,
or favorite celebrities in lieu of lawyer or staff portraits;
•
Information about sometimes embarrassing hobbies or
interests, including odd collections or political or
musical interests; and
•
Discussions of daily activities, including overt or thinly
veiled references to clients and client matters.
In addition, lawyers and staff may have posted pictures of firm
events or contact lists that include client contacts. They may also be
answering law-related questions, making representations about
their expertise, or exchanging testimonials, without regard for the
ethical rules that govern such activities.
For those charged with law firm risk management, such
independent, unregulated activities create obvious potential
headaches, particularly on a permanent, public forum like the
internet.
Recognizing the risks of such online activities, some firms naturally
attempt to ban all unauthorized internet postings about the firm.
These efforts generally fail. Firms that have tried to ban their
lawyers and staff from participating in social networks or posting
on blogs or other websites, or limit participation to only certain
(usually law-related) networks, normally find that lawyers and
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staff ignore such restrictions. For example, a firm that orders
lawyers to use only Legal OnRamp will often experience
noncompliance when a lawyer’s college or law school friends,
hobby community, or family all congregate on another, non-lawrelated site such as Facebook or MySpace.
A firm would likely be better served by educating its lawyers and
staff about its limitations on and the risks of online activity, and
trying to ensure that the firm’s interests are protected when the
online activities refer to or involve the firm or its clients. The first
step for protecting the firm’s interests is generally to adopt and
seek compliance with a firm social networking policy. This policy
then serves as the cornerstone for an online-activity education and
compliance program.
The remainder of this article suggests elements for a possible law
firm online activity policy, and discusses various approaches for
such provisions. Potential language is boxed in italics, with
comments in regular text after each section.
Sample Online Activity Policy.
Introduction. Firm encourages development of business and personal
relationships, including through social networks and other online
activities.
While this commitment to online activities is important, we also have
substantial legal and ethical responsibilities that must be observed when
posting online. These responsibilities include obligations to protect the
privacy, confidentiality, and legal interests of Firm and its clients. Online
activities also create risks for Firm, including inadvertent client
relationships or the practice of law where Firm’s lawyers are not licensed.
Therefore, Firm has adopted this Online Activity Policy. This Policy
applies to any Firm-related online activity. Even when engaging in
activities not related to the Firm or clients, you are encouraged to
recognize that these guidelines may suggest best practices and, when
possible, to observe these guidelines even in purely personal activities.
These opening paragraphs attempt to balance a law firm’s desire to
encourage lawyers and staff to engage in online activity, and
recognition that they will engage in such activity, with the need to
caution them about the risks of irresponsible online activities. The
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major concerns of online activity – potential risks to confidentiality
and the firm’s and clients’ legal interests, as well as risk associated
with inadvertent client relationships and corresponding risk of
inadvertent practice – are directly referenced so a reader will
immediate know the firm’s major concerns.
These opening paragraphs and the rest of the Policy are written to
include all lawyers and staff at the firm without distinction as to
role or job status. If a firm wants to rework the policy, it should
think carefully before deciding to have a policy that does not
regulate the activities of all lawyers and staff. The internet permits
any person at the firm to publish to a global audience. Frequently
issues for firms arise from unexpected sources. Those who feel
disenfranchised – even the most junior lawyers or seemingly least
empowered staff – are potential sources for the most damaging
communications about a firm.
Risk of Online Activity. Both you and Firm itself owe very significant
legal and ethical obligations to Firm’s clients. These obligations include
duties to keep clients’ confidences and to pursue the client’s interests first
and foremost, even before our own interests. Also, you have obligations
not to endanger unnecessarily Firm’s as well as its clients’ interests.
In light of these obligations, Firm asks you to be mindful that any online
post should be presumed public and permanent. Presume that your client,
any relevant court, opposing counsel, disciplinary counsel, and anyone
hoping to sue Firm may have access to and use of your online statements.
If you place it on the internet, it can be copied, forwarded, or subpoenaed.
You will likely have no control over a post’s ultimate use or
dissemination.
This section reminds everyone at the law firm of their basic
fiduciary obligations to clients and to the firm. It also seeks to
remind everyone of the risks of online activity. The greatest risks
from online postings do not come from a violation of some ethical
rule; instead, they tend to arise from an ill-considered post that
offends a client, opponent, or judge, or that is circulated to a global
audience to the firm’s embarrassment and injury.
Scope. This policy governs all Firm-related online and internet activities.
Online activity is Firm-related if a post (1) contains the Firm’s name,
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address, contact information, or Firm’s email suffix or link to Firm’s
website, or images of persons working at Firm or at Firm functions or (2)
is created or maintained at Firm or using Firm computers or other
equipment.
Many who use the internet for communications focus on the
freedom these communications provide, and the freedom they
intend for their own online communications. Therefore, many
people at a law firm who want to be active online will chaff against
any policy that regulates online activity. Law firms, in contrast, will
often recognize that vigorous regulation of online activities by the
persons at the firm will often provide the best protection for the
firm and its clients.
Recognizing this cultural conflict, this sample policy attempts to
balance the desired laissez faire of the online community and the
restrictiveness that law firms tend to favor. It does so by regulating
only firm-related posts, but defining such posts broadly. By design,
this policy should not reach purely personal posts by persons who
work for the firm.
Of course, even purely personal activities may reflect negatively on
or jeopardize the firm and its reputation. Mitigating such risks will
likely be best accomplished, however, through education and
encouraging (not forcing) those persons who are active online to
act responsibly. Such an approach will likely be more effective than
prohibiting posts created on personal computers that do not
reference the firm. Trying to regulate these more personal activities
would likely cause persons at the firm to ignore those restrictions,
and possible other, more important aspects of the online activity
policy.
Questions about Policy. If you have any questions about this Policy or
its application, or believe application of the policy to certain circumstances
is not appropriate, please contact [designated person] to discuss such
issues.
This paragraph suggests potential flexibility in application of the
Policy, and also designates the person whom lawyers and staff
should contact to discuss the Policy. This offer should alleviate
some of the frustration online users will experience in being
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subjected to the Policy. For this provision to work best, the person
designated should generally be seen as reasonable, be available
and approachable, and have some comfort with online activities,
including social networks.
Responsibility for Online Activities. The Firm considers you
personally responsible for any online activity that is linked to or may be
traced back to Firm. This includes any use of Firm’s name, internet
domain, or property including computers. When you use (a) Firm’s name,
domain name, email address, or other contact information, or (b) images
of Firm property or personnel, or (c) Firm’s computers and other
resources, this may imply that you are acting on Firm’s behalf.
This paragraph is intended to warn those active online that, if their
activities can be traced back to the firm, the firm expects to hold
them responsible for such activities. This paragraph should
authorize the firm to discipline firm lawyers and staff for conduct
that the lawyer or staff may consider not work related, for example
using the firm computers outside the office for improper online
activities.
Note, however, that this paragraph likely does not reach to
improper downloads of illegal materials and the like. Most law
firms already regulate such activity in their computer usage
policies. This sample policy is designed so as not to duplicate such
efforts, but a firm could, if it chose, include such restrictions here.
Respect Clients and Colleagues. You should respect the privacy,
opinions, and interests of clients, colleagues and others online. Also, you
should respect everyone else online. While a rude response may appear
witty at the moment, it may be damaging to Firm and to you in the long
run. Thus, we advise to avoid such circumstances. If you realize that you
have made a mistake in an online post, apologize and/or correct the
mistake.
Do not post anything embarrassing to Firm, colleagues, or clients, or
others associated with Firm. Obtain permission before posting
information from or about others at or associated with Firm.
Rude behavior is quite common online, perhaps because, feeling
protected by the anonymity of the internet, people will post what
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they would never say. The notion that “flaming” or attacking
someone online is also witty and entertaining, and thus
encouraged or admired rather than discouraged, may also be a
factor. This paragraph addresses such issues by requesting respect
for all firm-related persons.
Often the damage online activities cause to a firm arises from legal
and ethical but disrespectful activities: the sharing of embarrassing
pictures, stories, or communications. Also, often those active online
draw considerable negative attention (and possibly online
reprisals). Thus, this section requests that those active online show
respect to all others. Coupled with the Right to Discipline section
below, this also provides clear authority to discipline lawyers or
staff for disrespectful online behavior.
The request for permission contained in this section should also
help to reduce the use of disrespectful communications: people will
not want to ask permission, so they may temper their
communications. It will also involve multiple persons, including
the affected persons, into the decision of whether a communication
will be posted. This should limit the problems likely to arise from
such posts.
Some firms will find the permission requirement alone will likely
not suffice. For example, a particular group of lawyers or staff may
agree on the posting of embarrassing pictures from a firm outing
that the firm and its management agree should not be shared. To
mitigate such concerns, the firm may want to designate a particular
individual – often a marketing or risk management or similar
lawyer or staff – who should be consulted before firm-related
materials are posted.
Protect Client and Firm Confidences. Lawyers have a broad obligation
to protect client and Firm confidences. This includes a duty to protect
client information even when that information is otherwise publicly
available. Under no circumstances should you use or disclose, directly or
indirectly, client-related information – including that Firm represents a
client, as well as filed pleadings – or Firm confidences online without the
express permission of affected clients and Firm.
Page 21 of 85
Often people who post online about client matters justify their
actions by explaining that all information posted is publicly
available. This defense often does little to temper a client’s anger
over an unauthorized and undesired disclosure. Moreover, it
ignores that the ethical rules (in particular ABA Model Rule 1.6(a)
as adopted in most jurisdictions) and fiduciary obligations may
prevent a lawyer from using or disclosing information about the
representation of a client, even when that information is already
available.
This section also attempts to restrict disclosure of firm information.
Lawyers and staff often forward such information to news and
other sites. Certainly neither this provision nor this Policy will
prevent all such disclosures. This Policy should, however, remind
people that they should not share such information, and provide a
clear method for discipline should someone violate the firm’s
expectations for confidentiality.
Protect Contact Information. Contact information of Firm’s clients
and business associates is important, often confidential, information.
Under no circumstances should you post or share such information
online. This includes that you should not upload your Firm contact list to
a social network site, because this may expose your contacts to outside
review.
One area of firm information particularly vulnerable to
mishandling is client information. Often lawyers and staff will not
fully appreciate how social network sites operate. They may
perceive the ability to upload their contact lists as a convenience,
without understanding that such uploading may expose the
information to all their other networked friends or connections.
This section attempts to discourage such behavior. If the lawyers
and staff at a firm are internet savvy, this section may be omitted.
Think Before Connecting. Often you will receive requests to befriend,
connect, or link to other social network users. When considering
including clients, referral sources, and others you deal with professionally
in your network, please be aware that you may be opening that
information up to others accepted in your network.
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Like the prior section, this section warns of the dangers that may
arise when lawyers or staff agree to link to or befriend other social
network users. When a social network user connects to other online
persons, often the connection gains access to more of the user’s
profile, page, contacts, and the like. Often people do not consider
the risks of such a connection when agreeing to connect.
Again, if the lawyers and staff at a firm are internet savvy, this
section may be omitted.
Beware Giving General Legal Advice. Firm discourages providing
legal advice to someone not otherwise a client based solely upon an online
post. In particular, Firm is concerned about the risks of giving legal advice
without knowing all the relevant facts and engaging in unauthorized
practice if the person giving advice is not licensed where the person
receiving the advice or the matter is located.
If you believe it is appropriate to provide general guidance, you should
state you are not intending to provide legal advice, and that the person
should seek counsel from his or her own lawyer. A suggested disclaimer
may read: “I don’t know all the relevant facts, so I cannot give you legal
advice. You should consult your own lawyer. However, from what you
have written, it sounds like . . . .“ Also, if you are not licensed in the
applicable jurisdiction, you should warn of this fact in your
communication. Finally, if you want them to consider retaining you, you
may make this clear in the post: “If you think you need a lawyer on such
matters, please feel free to contact me offline at [contact information]
Then, if the person does follow up with you to receive specific legal advice,
open a file through Firm’s ordinary client intake process. This will ensure
that Firm does not have a conflict, and that other proper procedures for
opening and handling the file are observed. Also, make sure that a lawyer
licensed and knowledgeable of the law in the correct jurisdiction is
involved in the representation.
This section attempts to warn about the dangers of providing
general legal advice based upon online posts. Two dangers are
addressed: risks of unauthorized practice and of providing legal
advice based upon an online post that may omit material
information. Note that the section is written to warn against
improper action by nonlawyers as well as lawyers. Often
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unauthorized practice and incompetent practice concerns become
most serious when experienced law firm staff – often a secretary or
paralegal – decides to directly address an issue, relying on years of
work at a law firm that may or may not be relevant.
Often lawyers answer such questions because they hope to
originate a new matter. This section attempts to address such
concerns by emphasizing a disclaimer that can be used to mitigate
such risks at the outset, and then encourages the lawyer to invite
an offline communication later to formalize the client-lawyer
relationship.
Run a Conflict Check Before Discussing Real Matters. Before
discussing any specific legal matter online, you should determine whether
Firm has any involvement in that matter. Therefore, before (a) answering
a law-related question or (b) writing about a law-related news story,
decided case, or other matter, please request a conflict check from New
Files. This includes running a conflict check before posting comments on
stories or posts others have authored. If Firm does have some involvement,
please consult the lawyer responsible for the matter or [designated person]
before proceeding with your post or online activity.
Lawyers in particular have begun blogging or posting online
regarding real, pending cases. These posts tend to allow the
lawyers to establish themselves as subject-matter experts on the
related matters, a nice way to develop business. Unfortunately,
sometimes the lawyers create such publications without realizing
their firm is involved in the underlying matter, or represents an
involved party on other matters. The post may interfere with such
representations or client relationships.
The easiest way to avoid such problems is to request that those
persons considering posting online also conduct a conflict check on
the matter before posting. This policy is used where I blog,
www.TheEthicalQuandary.com. It imposes only a minor burden,
and has allowed us to avoid some embarrassing situations where
we criticized the work of our firm or the success of our clients.
Honest Communications. You should avoid dishonest behavior and
misrepresentations online. This includes engaging in online activity, such
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as communicating electronically or creating websites, while employing a
misleading alias or suggesting that you are someone else.
In addition to rude behavior, the anonymity of the internet appears
to encourage people to engage in dishonest online behavior. Often
this includes creating false profiles to tease the profiled person, or
using other ruses (such as posing as a friend or acquaintance) to
gain access to online information.
Such conduct may violate applicable law. Even when it does not, it
creates potential ethical and other problems. This provision
therefore seeks to prohibit all such behavior.
This model policy is not intended to take a position regarding the
use of avatars (a graphical representation of a user, often one that
does not resemble the real user) or the like on sites such as Second
Life. Some internet sites require the use of an avatar, and do not
allow the user to choose an avatar that looks like the user.
Certainly in these sites the use of an avatar alone should not
constitute dishonest conduct. A firm may want to specify or at least
educate its lawyers and staff that, while avatar use alone is likely
permitted, the firm would deem using an avatar to mislead people
as a potential act of misrepresentation. For example, if a nonlawyer
created a lawyer avatar, or a person created an avatar of a different
gender, and then tried to use those differences to deceive another,
this may constitute action that the firm would deem a violation of
this policy.
Advertising Rules Apply Online. The Rules of Professional Conduct
that govern lawyer advertising and solicitation generally apply to online
activity. Therefore, you should avoid any false or misleading statements
while posting online. In addition, you should ensure that any online
website or post you create bears all required notices and disclaimers. In
particular, our jurisdiction prohibits a lawyer from [add appropriate
language, such as “using client recommendations and testimonials”].
Also, our jurisdiction requires special disclaimers when [add appropriate
language, such as “claiming a specialty or discussing past results”].
Often lawyers and staff do not consider that lawyer advertising
rules generally apply online. This section is designed to caution
lawyers and staff they need to comply with such rules when
Page 25 of 85
engaging in online activities. When active in a jurisdiction that
imposes additional requirements, a firm may want to add express
reference to these requirements in this section of its online policy.
Preserve Online Communications. The Rules of Professional Conduct,
as well as malpractice and other concerns, generally [require/support] that
a lawyer should maintain a copy of all communications about the lawyer
or the lawyer’s services for a period of [two] years [confirm with your
state’s version of ABA Model Rules 7.2 and 7.3 as appropriate]. Please
make sure that you arrange to access any Firm-related communication
you post online for a period of at least [two] years.
Many jurisdictions’ ethical rules impose a requirement for how
long any lawyer advertisement or solicitation must be kept. This
section is drafted to incorporate such requirements, or so that the
firm may advise its lawyers and staff of the period they should
keep such communications. A firm could also require that lawyers
and staff submit or file all online communications in a particular
folder (perhaps on a computer server drive) or with particular
persons. These safeguards should provide an additional limit on
firm-related posts, and also ensure that the firm has the ability to
monitor online communications and copies of any communication
it may need to address a subsequent concern.
Link to Firm Profile. To help monitor its online profile, Firm operates a
“Law Firm” profile on the following social networks: LinkedIn, Legal
OnRamp, Martindale-Hubbell Connected, and Twitter [add additional
sites as appropriate]. If you are creating a profile on these networks, please
connect to or befriend the user “Law Firm,” and ensure that you allow
“Law Firm” to observe information on your site that is viewable by other
network participants.
Social networks generally alert connections or friends of changes or
posts to profiles. This provision seeks to take advantage of this
function by having all lawyers and staff who are active on a social
network site link to a firm profile. The firm’s risk management and
marketing staff should then be more capable of monitoring online
activities by simply tracking changes through this profile.
Page 26 of 85
Of course, the firm should take care not to link this profile to
persons outside the firm, and to sever relationships with anyone
who departs the firm.
Obedience to Applicable Rules. You should obey the law and the rules
of the website or social network site in which you participate. Further,
even if not explicitly directed by this Policy, you should obey other
applicable legal and ethical rules. This includes that you should not send
mass emails to persons whom you do not know to advertise legal services
or solicit potential clients.
This section intends to remind that a person acting online must still
follow all applicable rules, including those imposed by a website or
by other state or federal law, including applicable ethics opinions.
In addition, because of federal and ethical restrictions in some
jurisdictions on unsolicited emails, this policy generally directs that
lawyers and staff should not send unsolicited emails to advertise
legal services or solicit clients.
Right to Discipline. Firm reserves the right to take disciplinary action
against, including to terminate employment or association of, any person
who engages in any online activity that violates the law – including the
Rules of Professional Conduct – or otherwise reflects poorly upon or
otherwise damages Firm or its clients.
This section provides a clear warning that the firm may discipline
or even terminate a person who engages in illegal or other
improper online behavior. This section is designed to be very
broad and inclusive. A firm may prefer to narrow this provision,
but should recognize that doing so may prevent it from having
express authority to take action when someone engages in legal but
ill-advised behavior.
Prohibited Sites. Because of issues with security policies or similar
concerns, Firm prohibits the use of the following social network sites for
Firm-related activities without authorization from Firm IT: [identify
sites].
This provision allows for a firm to prohibit lawyers and staff from
engaging in firm-related activities on particular sites that the firm
deems as posing too great a risk to the firm or its clients. Often
Page 27 of 85
these sites can be selected by the firm’s information technology
group, and may include sites that lack adequate privacy and other
safeguards or serve as frequent sources for those seeking to
distribute viruses or other harmful computer information
(including malware).
Alternatively, a firm could choose to designate the social
networking or other sites where it will allow its lawyers and staff
to create profiles that refer to or link back to the firm’s online
presence. As previously noted, these policies may be difficult to
enforce, but may allow enough freedom to obtain compliance from
all but the most determined rule-breakers.
Conclusion
As noted at the outset, law firm lawyers and staff are using online
posts and in particular social networks to promote their services,
network, and share their lives, activities, and friendships with
others. Law firms can and should take steps to mitigate their risks
from such online activity. This article and its sample policy provide
a starting point that, with education and reinforcement, should
help a firm design and implement its own online activity or social
networking policy.
Of course, an online activity policy and related education will not
address all issues raised in the opening paragraphs of this article. A
firm that wants to further protect itself online may, for example,
want to couple an online activity policy and related education with
other protections. These protections may include restrictions in
employment agreements that limit distribution of client and firm
information and post-employment use of the law firm’s name. The
protections may also include a proactive, designed approach to
social networks, such as encouraging present firm lawyers to
populate and use social network sites, so that they become the firstlisted profiles of a firm, instead of having disgruntled former
lawyers or employees’ profiles appear.
Of course, the lawyers who populate and use the social network
may need guidance regarding how they should participate, a
function that the proposed policy is designed to facilitate.
Page 28 of 85
The Ethical and Liability Implications of Social Networking
by Jeffrey T. Kraus
Introduction
What was almost unheard of just five years ago, is now
commonplace. Participation in online social networks may not
have replaced all other forms of networking, but it has surely
become the most popular. Social networking now accounts for
25% of all U.S. activity on the Internet, Facebook has more than 800
million active users worldwide, and Twitter has over 300 million
monthly visitors. Lawyers have not stood still as this trend has
grown. According to the ABA’s 2011 social networking survey,
65% of lawyers in private practice are engaged in online social
networking, compared with 56% in 2010, 43% in 2009, and 15% in
2008.
See Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social
Media Is Obvious. It’s Also Dangerous, ABA Journal, posted Feb. 1, 2011
(hereinafter The Appeal of Social Media), available at
http://www.abajournal.com/magazine/article/seduced_for_lawyers_th
e_appeal_of_social_media_is_obvious_dangerous/ (last visited March
13, 2012).
Some lawyers join a social network for social interaction; others
network with professional development in mind. Whatever the
reason, a lawyer’s social networking activity raises significant
ethical and liability issues. These issues are implicated by the very
nature of social networking sites, which typically allow
participants to post their profile, answer questions, add comments,
engage in marketing, and otherwise report on their professional
and personal lives. Although these activities may seem benign,
lawyers may form inadvertent attorney-client relationships, violate
rules of professional conduct, or create professional liability
exposure if they engage in social networking without careful
consideration. This article discusses how the rules of professional
conduct impact social networking practices and addresses the
professional liability concerns implicated by social networking
participation.
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Social Networking and the Rules of Professional Conduct
The Attorney-Client Relationship
Sites, such as LinkedIn, allow users to post and answer questions,
and lawyers may be asked to respond to a question on a specific
legal issue. Such a response may be characterized as legal advice.
See ABA Formal Opinion 10-457 (Aug. 5, 2010) (Although “no exact
line can be drawn between legal information and legal advice,”
“lawyers who answer fact-specific legal questions may be
characterized as offering personal legal advice,” while “a lawyer
who poses and answers a hypothetical question usually will not be
characterized as offering legal advice.”). Thus, a casual response to
a Web post regarding a legal issue can easily blur the lines between
providing legal information and legal advice. Providing legal
information may not be risk-free. But providing legal advice is
more problematic, because it may create an inadvertent attorneyclient relationship with the social networking participant who
asked the question. And once an attorney-client relationship is
created or pursued, a number of professional conduct rules apply,
including those related to confidentiality and conflicts of interest.
Confidentiality Issues
ABA Model Rule 1.6 generally prohibits a lawyer from revealing
“information relating to the representation of a client.” This basic
duty to maintain confidentiality is particularly at risk in the social
networking milieu because “[n]ew forms of communication can
seductively cause lawyers to forget their ongoing duty to maintain
the confidences of their respective clients.” Los Angeles County
Opinion 514 (Aug. 15, 2005). Indeed, there may be an inherent
“tension between the duty of confidentiality and the Facebook
norm of enormously reduced, if not nonexistent, personal
boundaries.”
Leslie A. Gordon, Why Can’t We Be Friends, ABA Journal, posted Jan. 1,
2010, available at
http://www.abajournal.com/magazine/article/why_cant_we_be_friend
s (last visited March 13, 2012).
As one commentator notes, a Facebook status update that tells the
lawyer’s “friends” that he is drafting a motion to dismiss a
Page 30 of 85
complaint on particular grounds could reveal confidential
information.
Christine E. Mayle, Navigating the Ethical Pitfalls of Online Networking, ABA
Young Lawyers Division, The 101 Practice Series: Breaking Down the
Basics (2009), available at
http://www.abanet.org/abanet/common/login/securedarea.cfm?areaT
ype=member&role=abanetmo&url=/yld/mo/onlinepitfalls.pdf (last
visited March 13, 2012—ABA membership required).
That concern became quite real for one lawyer, who was
suspended by her state’s disciplinary authority after she published
information about cases she was handling on her blog.
Debra Cassens Weiss, Blogging Assistant PD Gets 60-Day Suspension for
Posts on Little-Disguised Clients, ABA Journal, posted May 26, 2010,
available at
http://www.abajournal.com/news/article/blogging_assistant_pd_gets_
60-day_suspension_for_posts_on_little-disguised_ / (last visited March
13, 2012).
Confidential information is also at risk when lawyers seek advice
about client matters from listervs or other social networking sites.
According to Oregon Ethics Opinion 2011-184 (March 2011),
inquiries on legal issues posted on listervs that are couched as
hypotheticals generally do not implicate Rule 1.6, but a lawyer
must obtain client consent before posing a hypothetical that
includes facts that “permit persons outside the lawyer’s firm to
determine the client’s identity.”2
Clients also can reveal confidential information through careless
social networking activity, with unfortunate consequences. This
was made manifest in Lenz v. Universal Music Corp., 2010 U.S. Dist.
LEXIS 125874, 2010 WL 4789099 (N.D. Cal. Nov. 17, 2010), where
the court determined that a client who disclosed information about
her lawyer’s litigation strategy in e-mails, blog posts, and Gmail
The opinion also points out that if a listserv posting reveals confidential
information to counsel for a client’s adversary, that lawyer “is not
prohibited from subsequently using the information for the benefit of his
or her own client.” Accordingly, lawyers “seeking to consult about an
unusual fact pattern must be careful about using a LISTSERV to obtain
assistance from other attorneys, at least not without the informed consent
of her client about the potential risks of the consultation.”
2
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chat sessions waived the attorney-client privilege for related
information.
Confidential information can also be revealed in another, less
obvious way. Many networking sites solicit users to import or
upload their contact information. If a lawyer clicks “yes” to this
request without reflection, she may unwittingly release her client
contacts, expert witness or consultant contacts, fact witness
contacts, vendor contacts, and other sensitive information to a very
wide audience.
Conflicts of Interest
Participants on social networking sites often use an e-mail or online
name that is shortened or otherwise does not reveal their identity.
Lawyers who communicate with such participants may be
communicating with a party whose interests are adverse to a client
of the lawyer’s firm. That could create an issue under Model Rule
1.7.3 Networking lawyers may also state a position on a legal issue
that is contrary to the interests of a client, thus creating an issue
conflict. Although issue conflicts generally arise when a lawyer
takes inconsistent legal positions in different cases, taking an
opposing position on a networking site can at the very least create
a client-relations problem. See ABA Model Rule 1.7, Comment [24].
A different kind of conflict issue can arise if a lawyer acquires
information from a nonclient networking participant that must be
kept confidential under Model Rule 1.18 regarding prospective
clients. Acquiring such information could conflict the lawyer out of
representing another party in the matter under discussion. See
ABA Formal Opinion 10-457 (Aug. 5, 2010). Receipt of such
information could also create a “confidential information” conflict
that might require the lawyer to withdraw from representing an
existing client who would want to know the information that must
be kept confidential.
It could also violate Model Rule 4.2, which prohibits a lawyer from
communicating with a represented party on the subject of the
representation when the lawyer knows that party is represented by
counsel on that matter.
3
Page 32 of 85
Unauthorized Practice of Law
Model Rule 5.5(a) states that a “lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in
that jurisdiction, or assist another in doing so.” But one of the
touted features of the social networking model is that it permits
people to communicate with one another without regard to
physical boundaries. Thus, a lawyer may easily communicate with
a social networking participant who resides in a state where that
lawyer is not licensed to practice. If the lawyer provides specific
legal advice to such a participant, he may be engaging in the
unauthorized practice of law. See Melissa H. Weresh, A Bold New
Frontier—To Blog Where No Lawyer Has Blogged Before, Iowa Lawyer
(Jan. 2009).
Advertising and Solicitation
In recent years, lawyers have gone beyond Web sites to reach
clients and potential clients. LinkedIn, Facebook, Twitter, and
similar social and business networking sites have become popular
for such communications. So too have lawyer-authored blogs. And
some lawyers have offered discounted legal services on “daily
deal” Web sites, while others seek clients through Internet listings
such at Avvo or Total Attorneys. As with any other communication
channel, when lawyers use social media to market their services,
they are subject to the professional conduct rules relating to
advertising. See, e.g., In re Hunter, VSB No. 11-032-084907 (Va. State
Bar, 3d Dist. Comm. Nov. 8, 2011) (lawyer publicly admonished
for, inter alia, not including advertising disclaimer on legal issues
blog available on his firm’s Web site). See also Helen W.
Gunnarsson, Friending Your Enemies, Tweeting Your Trials: Using
Social Media Ethically, 99 Ill. Bar J. 500 (Oct. 2011).
Several recent ethics opinions have applied the lawyer advertising
rules to a variety of social media marketing methods. For example,
in Philadelphia Opinion 2010-06, a lawyer’s participation in a blog or
similar social interactive media was determined not to be
prohibited by Pennsylvania Rule 7.3(a)’s prohibition against
soliciting prospective clients through “real-time electronic
communication,” but Pennsylvania’s general advertising rules
applied to such communications. See also North Carolina Opinion
2011-08 (July 15, 2011). But see Stephanie Beougher, Tech Talk: How
Page 33 of 85
to Navigate a World of Tweeting, Ohio Law. (May/June 2009) (Ohio
Rule 7.3(e) prohibition against soliciting a prospective client
through “real-time electronic contact” may include an exchange of
comments on Twitter). In addition, South Carolina Opinion 09-10
states that information on “networking [Web sites] are both
communications and advertisements; therefore, they are governed
by Rules 7.1 and 7.2. While mere participation in these [Web sites]
is not unethical, all content in a claimed listing must conform to the
detailed requirements of Rule 7.2(b)-(i) and must not be false,
misleading, deceptive, or unfair.”
As social media marketing continues to grow, lawyers should
review the applicable rules of professional conduct related to
referrals. See New Jersey Committee on Attorney Advertising, Opinion
43 (July 4, 2011) (“Pay per lead” Internet lawyer referral service is
not impermissible under New Jersey’s lawyer advertising and
solicitation rules, but disclosures must not mislead consumers);
accord Colorado Opinion 122 (amended) (Oct. 16, 2010); Arizona
Opinion 11-02 (Oct. 2011). See also New York Opinion 873 (June 9,
2011) (lawyer may offer prize to general public as enticement to
connect to lawyer’s social networking site, provided New York’s
professional conduct rules pertaining to advertising are followed);
New York Opinion 897 (Dec. 13, 2011) (lawyer can use “daily deal”
Web sites to sell vouchers for discounted legal services provided
that lawyer abides by, inter alia, New York’s professional conduct
rules on advertising); accord South Carolina Opinion 11-05 (undated);
North Carolina Opinion 2011-10 (Oct. 21, 2011). But see Indiana
Opinion No. 1, 2012 (lawyer who advertises through a group
coupon program may violate Indiana’s rules of professional
conduct by, inter alia, delegating the creation of the attorney-client
relationship and sharing fees for channeling clients).
Networking participants also should study Model Rule 7.4, which
provides generally that a lawyer “shall not state or imply” that the
lawyer has been recognized or certified as a “specialist” in a
particular field of law. Exceptions are patent lawyers, admiralty
lawyers, and lawyers who have been certified in jurisdictions with
certification programs. Some states, like Illinois, have expanded the
restrictions in Model Rule 7.4 and prohibit the use of the terms
“certified, specialist, expert, or any other similar terms” to describe
Page 34 of 85
a lawyer’s qualifications. Illinois Rule 7.4(c). New York Rule 7.4(a)
similarly provides that a “lawyer or law firm shall not state that the
lawyer or law firm is a specialist or specializes in a particular field
of law” with certain limited exceptions. Social networking sites like
LinkedIn allow users to provide professional information under
the term “Specialties.” One commentator has observed that if an
Illinois lawyer provides that information and does not include
limiting language reflecting the Illinois Rule 7.4(c) prohibition, he
or she may violate that rule. See Helen W. Gunnarsson, Social Media
and Legal Ethics, 97 Ill. B.J. 438 (Sept. 2009).
The Duty of Candor
Model Rule 4.1 prohibits a lawyer from making a false statement of
material fact to a third person. Lawyers, therefore, should avoid
“puffing” their online biography, engaging in “hyperbole on
blogs,” or artificially inflating “the number of followers they have
on Twitter.”
Joe Dysart, Watch Your Social Media Posts Because Lawyer Regulators,
FTC May Be, ABA Journal, posted Feb. 1, 2011, available at
http://www.abajournal.com/news/article/watch_your_social_media_p
osts_because_lawyer_regulators_ftc_may_be (last visited March 13,
2012).
Networking lawyers also should be mindful that their social
postings may implicate Model Rule 3.3, which prohibits lawyers
from making a false statement of fact to a tribunal. One Facebooksavvy judge caught a lawyer who asked for a continuance because
of the death of the lawyer’s father posting contradicting Facebook
status updates that revealed her heavy social activities during the
time in question.
See Molly McDonough, Facebooking Judge Catches Lawyer in Lie, Sees
Ethical Breaches, ABA Journal, posted July 31, 2009, available at
http://www.abajournal.com/news/article/facebooking_judge_catches_l
awyers_in_lies_crossing_ethical_lines_abachicago / (last visited March
13, 2012).
A.
Misconduct
Formal or informal discovery of the social network profiles and
postings of opponents, witnesses, and even potential jurors is
becoming commonplace in modern litigation. See, e.g., Ana
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Campoy and Ashby Jones, Searching for Details Online, Lawyers
Facebook the Jury, Wall St. J. (Feb. 22, 2011). But accessing social
networking sites to gather intelligence on opponents or third
parties may in certain circumstances transgress Model Rule 8.4(c),
which states that it is professional misconduct for a lawyer to
“engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” So says Philadelphia Opinion 2009-02 (March
2009), which considered a situation where a lawyer believed that
an adverse party’s witness’s private Facebook and MySpace pages
might contain information that could impeach the witness’s
testimony. The lawyer could not access these private pages because
they were available only to the witness’s “friends.” The lawyer
wanted to hire an investigator to “friend” the witness without
revealing the investigator’s affiliation with the lawyer, obtain
access to the private pages, and then pass on any information to the
lawyer. That plan was found to be deceptive under Pennsylvania’s
version of Rule 8.4(c) because it would purposefully “conceal [the
investigator’s reason for seeking access to the private pages] from
the witness for the purpose of inducing the witness to allow access,
when she may not do so if she knew the [investigator] was
associated with the lawyer and the true purpose of the access.”4 See
also New York City Bar Opinion 2010-2 (Sept. 2010) (noting that,
while deception is prohibited, an “attorney or her agent may use
her real name and profile to send a ‘friend request’ to obtain
information from an unrepresented person’s social networking
website without also disclosing the reasons for making the
request”); New York State Bar Association Opinion 843 (Sept. 10, 2010)
(concluding that lawyers may view the social network pages of
opposing parties or witnesses that are public and thus accessible
without a “friending” request).5
The opinion said the proposed conduct would also violate Pennsylvania
Rule 4.1, which prohibits making a false statement of material fact to a
third person.
4
Lawyers, of course, are not the only ones who can get into trouble when
they use deception in their networking activity. See Barringer, “Utility
Official Suspended for an E-Mail Masquerade,” New York Times, Nov. 10,
2010, at A21 (after suspending an executive who joined an online
discussion concerning one of his company’s products under an assumed
name, the company stated that the executive’s conduct was “not in
5
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Model Rule 8.4(e) says that it is professional misconduct to “state
or imply an ability to influence improperly a government …
official,” and Model Rule 8.4(f) says that it is professional
misconduct to “knowingly assist a judge … in conduct that is a
violation of the applicable rules of judicial conduct or other law.”
These prohibitions may be implicated by a Florida ethics opinion
that concludes that “listing lawyers who may appear before the
judge as ‘friends’ on a judge’s social networking page reasonably
conveys to others the impression that these lawyer ‘friends’ are in a
special position to influence the judge” and thus violate Canon 2(B)
of the Florida Code of Judicial Conduct. Florida Judicial Ethics
Advisory Committee Opinion 2009-20 (Nov. 17, 2009). Other
jurisdictions, however, take a different view. See South Carolina
Advisory Committee on Standards of Judicial Conduct Opinion 17-2009
(Oct. 2009) (a “judge may be a member of Facebook and be friends
with law enforcement officers and employees of the Magistrate as
long as they do not discuss anything related to the judge’s position
as [M]agistrate”); Ohio Board of Commissioners on Grievances and
Discipline Opinion 2010-7 (Dec. 3, 2010) (a judge can “friend” a
lawyer who appears before her provided the judge maintains
“dignity in every comment … and other information shared on the
social networking site” and otherwise complies with the Ohio
Code of Judicial Conduct); New York Judicial Ethics Advisory Opinion
08-176 (Jan. 29, 2009) (judges can “friend” lawyers who appear
before them, but, among other things, they should “consider
whether such online connections, alone or in combination with
other facts, rise to the level of a ‘close social relationship’ requiring
disclosure and/or recusal”); Kentucky Formal Judicial Ethics Opinion
JE-119 (Jan. 20, 2010) (same).
Lawyers can also engage in misconduct based on the content of
their social networking posts. Just ask the Florida lawyer who
expressed his belief that a judge was “methodically depriving
criminal defendants of their right to a speedy trial” by blogging
that the judge was an “evil, unfair witch,” “seemingly mentally ill,”
and “clearly unfit for her position and knows not what it means to
be a neutral arbiter.” Those statements drew a public reprimand
and a $1,250 fine after the Florida Bar found they violated Florida
keeping with [the company’s] core values of honesty and transparency”).
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Rules of Professional Conduct 4-8.2(a) (making false or reckless
statements regarding the qualifications or integrity of a judge) and
4-8.4(d) (engaging in professional conduct that is prejudicial to the
administration of justice). See The Appeal of Social Media.
Managerial Responsibilities
Model Rule 5.1 generally requires lawyers who manage law firms
to “make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.” Given the potential
impact online social networking activity may have on a lawyer’s
professional conduct obligations, law firm managers should
consider what kinds of social networking policies need to be
adopted to addresses the issues discussed above.
Professional Liability Concerns
Creating an inadvertent attorney-client relationship through social
networking interaction raises obvious professional liability
concerns. So too with the conflict of interest problems that social
networking participation can trigger. But the inherent nature of
social networking raises other concerns as well. Simply put,
processing the constant new stimuli that social networking
introduces can make complex thinking more difficult, “making it
harder to make decisions and solve problems.”
Richard Young, How to Survive Information Overload, CBS Money Watch
(posted Jan. 12, 2010), available at http://www.bnet.com/article/how-tosurvive-information-overload/383397 (last visited March 13, 2012).
Accordingly, lawyers who overindulge in social networking may
compromise their ability to properly analyze complex legal issues.
This can lead to mistakes, which of course can lead to professional
liability claims.
Networking sites that encourage members to contact each other for
free advice can also raise liability concerns. Even though ABA
Formal Opinion 98-411 (Aug. 30, 1998) states that a “consulted
lawyer does not have a client-lawyer relationship with the
consulting lawyer’s client by virtue of the consultation alone” (and
thus should not be liable for malpractice), the consulting lawyer
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still may be able to sue the consulted lawyer if the advice turns out
to be incorrect.
“Puffing” on a social networking site can have unintended
professional liability consequences in addition to the duty of
candor issues discussed in Section II.F above. The basic rule on the
standard of care in lawyer malpractice cases is stated in Restatement
§ 52 (2000), but Comment d to § 52 provides, in effect, that if a
lawyer claims to be better or undertakes to try harder than other
lawyers in similar circumstances, the lawyer will be held to those
claims and undertakings. Thus, a general claim of special
competence or diligence made in a networking post may be
imputed to every lawyer in the firm and every matter undertaken
by the firm. Consistent with this approach, the court in Duffey Law
Office, S.C. v. Tank Transport, Inc., 535 N.W.2d 91, 92 (Wis. Ct. Spec.
App. 1995), ruled that a lawyer who represents to a client that the
lawyer has “expertise greater than that of the average Wisconsin
lawyer” should be held to a higher standard of care consistent with
that claim. See also Abramson v. Wildman, 964 A.2d 703 (Md. Ct.
App. 2009) (representation in a firm’s engagement letter that it
would be “both sensitive and professionally responsive to your
situation” formed the basis of the client’s breach of contract action).
Inappropriate social network posts can also lead to exposure for
defamation, libel, or other torts. Except for the privilege relating to
publication of potentially defamatory matter concerning a
nonclient in the representation of a client before a tribunal, lawyers
may be similarly subject to tort liability for imprudent remarks
posted on a social networking site. See Restatement § 56. A case in
point involves a Fortune 500 company that settled two lawsuits
resulting from one of its in-house counsel’s derisive blog posts
about two plaintiff’s lawyers who were suing the company for
patent infringement. See Jeanette Borzo, Employers Tread a
Minefield, Wall St. J., Jan. 21, 2011; see also Brenda Sapino Jeffreys,
Lawyer, Firm File Suit Over False Review, Texas Lawyer, March 28,
2011 (former paralegal sued for defamation after allegedly posing
as a former client and posting “a false and derogatory review” of
her former firm on a social media site).
Page 39 of 85
Conclusion
When lawyers use social networking sites their activity may be
subject to a number of professional conduct rules. Understanding
how those rules and the world of online networking intersect can
help lawyers honor their ethical obligations and avoid professional
liability claims while they take advantage of the benefits social
networking has to offer.
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Transcendental Lawyering - To Boldly Go Where No Lawyer
Has Gone Before: The Interrelationship between Ethics and
Social Networking by James S. Bolan
Google, YouTube, Facebook, LinkedIn, Plaxo, Second Life, email,
internet, social networks, chat rooms, forums, bulletin boards,
listservs, newsgroups and virtual reality sites. These are the forms
of 21st Century communications among one’s peers, third parties,
clients and potential clients. Lawyers are using the web in
exponential measure, but such communication does not change
one’s duties and responsibilities under real world ethics rules.
Henry David Thoreau meet Dick Tracy. Dick Tracy meet Philip
Rosedale.
Application of Disciplinary Rules to Cyberspace
Under the Massachusetts Rules of Professional Conduct, lawyers
are required to abide by ethics rules where they are licensed, where
they have offices, and where they direct communications,
regardless of where the conduct occurs. Mass. R. Prof. C., Rule 8.5.
A lawyer not admitted in Massachusetts is nonetheless subject to
the disciplinary authority of this and one’s home jurisdiction if the
lawyer provides any legal services here. Providing legal services in
a jurisdiction where one is not admitted can result in unauthorized
practice of law (UPL) issues. See below for more on that subject.
Do Not Inadvertently Create an Attorney Client Relationship
UPL and MJP
How does one know where the person on-line is located, or even
how old they are? All of which leads to the possibility that one
could be engaging in unauthorized practice of law when
communicating in the ether. Protection against UPL ought to
include disclaimers in online communications as to one’s licensure
and geographic limitation on practice. Do not take on a
relationship in a jurisdiction where one is not admitted. UPL
violations can result in fee disgorgement (see, Birbrower,
Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, 949
Page 41 of 85
P.2d 1 (1998)), civil and/or criminal penalties, as well as bar
regulation. One additional issue facing lawyers in cyberspace is
determining which states’ rules apply. See, e.g., Choice Of Law In
Online Legal Ethics: Changing A Vague Standard For Attorney
Advertising On The Internet, 70 Fordham L. Rev. 2409 (2002).
Creation of Attorney Client Relationships, Confidentiality,
Privacy, and Access
One could, by communicating in cyberspace, unintentionally create
an attorney-client relationship. For example, in 2007, the
Massachusetts Bar Association Ethics Committee issued an opinion
(2007-01) that, in the absence of an effective disclaimer, a lawyer
who receives unsolicited information from a prospective client
through an e-mail link on a law firm web site must hold the
information in confidence even if the lawyer declines the
representation. The subtext of that opinion was that “clickthroughs” via email could establish an attorney-client relationship
unless disclaimers or permissions on the website made it clear that
no such relationship was being created.
Be aware of Advertising and Solicitation Rules
Communication in “cyberspace” is subject to bar regulation. See,
among others, N.C. Op. 239; N.Y. Op. 709; N.D. Op. 1999-02; Cal.
Bar Op. 2001-155; Utah Op. 97-10. See, also, Ariz. Op. 99-06 (internet
service that sends legal questions from individuals to attorneys for
a fee is not permitted); Iowa Op. 00-07 (a link to a company's public
database, including lawyer’s information, essentially impermissible
online referral service); Me. Op. 174 (2000) (online legal service that
allowed users to locate lawyers permissible) Neb. Op. 95-3:
(attorneys may not participate in for-profit online referral
programs.); N.Y. Op. 721 (1997) (online directory listing with
practice areas permissible if not "for-profit referral service."); N.C.
Op. 241 (1996) (attorneys may participate in online directory, not
referral service.) Oh. Op. 2002-5 (attorney may pay online lawyer
referral service a registration fee and percentage of the legal fee
earned); Ore. Op. 1994-137 (attorneys may participate in the
development of self-help online database).
ABA Model Rule 7.2 was amended to include internet advertising.
See, Massachusetts Rule of Professional Conduct 7.2(a) that includes
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public media or written non-solicitation communication.
Advertising rules may apply even if the site is a non-confidential
chat room, thus, rendering a lawyer not only subject to disciplinary
rules, but risking confidentiality. While websites/pages constitute
advertising, is the same true for virtual world or MySpace pages?
Are these activities more akin to solicitation than advertising?
While websites constitute advertising, no rules expressly state that
online offices in “virtual” communities do. In virtual cyberspace,
the level of interaction surpasses chat rooms. Some state ethics
committees (California and Arizona) have conditionally blessed
communication with prospective clients through real-time
electronic contact. Others (Michigan, West Virginia, Virginia and
Utah) have opined that in-person solicitation rules apply to
interactive communications. At least one state (Florida) has
decided that a lawyer may not solicit prospective clients through
real-time communications. Rule 7.3 of the Massachusetts Rules of
Professional Conduct precludes personal communication by
electronic device “or otherwise”.
Is social surfing just free speech, or is it trolling for clients? Instant
messaging, for example, allows real-time communication, akin to
in-person contact. But, see, Cal. Bar Op. 2004-166 (attorney's
communication with prospective fee-paying client in a massdisaster victims internet chat room violated solicitation rules); Pa.
Op. 96-17 (1997) (internet communication in a chat room alone did
not violate rules on solicitation, but such communication should be
very carefully approached). See also, Cal. Bar Op. 2001-155 (website
is not necessarily a solicitation even if it includes electronic mail to
and from the attorney).
If your network page contains comments from clients or colleagues
about how fabulous you are (hold the applause!), you may run
afoul of testimonial prohibitions in some states. Massachusetts
does not expressly prohibit testimonials, but California, New York
and others do.
And, the Constitution notwithstanding, many states (Kentucky,
New Jersey, Florida and Nevada, for example, but not
Massachusetts) still have rules requiring filing and pre-screening of
ads. Some states (New York) still require labeling of “Attorney
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Advertising” which is applicable to internet activity. Finally,
mandatory disclaimers are required in some states, including “The
choice of a lawyer is an important decision that should not be
based solely upon advertisements”; “No representation is made
that the quality of the legal services to be performed is greater than
the quality of legal services performed by other lawyers”; “The
Wyoming State Bar does not certify any lawyer as a specialist or
expert. Anyone considering a lawyer should independently
investigate the lawyer’s credentials and ability, and not rely upon
advertisements or self-proclaimed expertise”; “While this firm
maintains joint responsibility, most cases of this type are referred
to other attorneys for principal responsibility”; and, “FREE
BACKGROUND
INFORMATION
AVAILABLE
UPON
REQUEST.”
A number of states are now insisting that social websites or video
sharing sites must comply with advertising rules. See new Texas
rules August 2008.
No matter what, one must ensure that what you say in cyberspace
is true and not misleading. See Mass. R. Prof. C., Rule 7.1.
Keep social network sites and posts separate from your law firm
websites.
Protect Client Confidences
Twitter is no different from the conversation in the courthouse
elevator. Attorneys need to make sure that when they post on a
blog or on Twitter that they aren't revealing any attorney-client
confidences.
See, In Re Peshek, Comm’n No. 09 CH 89 (Aug. 25, 2009), available at
https://www.iardc.org/09CH0089CM.html.
Your "tweet" about a case could disclose information that you
would not otherwise think is risky, but the ease and familiarity of
use in a society where the pressure is to move fast or die is
inherently dangerous. “I'm drafting a summary judgment motion”
or a post with enough information about that the case is apparent
is FATAL.
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As with any other substantive communication, a second lawyer
should check your communications before they go out.
If you just cannot wait, then give me your bar card on the way out
the door and Tweet away…..
Be Careful who you give access to in your Network
The rule was always, if you don’t mind seeing what you write or
say on the front page of “the Herald”, then fire away! Facebook
and LinkedIn and other sites allow anyone to peruse fellow
members' networks and connections. Letting someone into your
network means your data can be mined. That may be fine. But, not
if it contains information about clients or contacts that you do not
want someone else to use or misuse. In addition, there are an
increasing number of reported incidents where judges have
“friended” list users and lawyers have “friended” clients and
others, each with concomitant consequences.
Fitness and the First Amendment
Notwithstanding First Amendment protections, one can imagine a
bar complaint being filed by an “aggrieved” person for statements
made by a lawyer in a blog, a listserv, a chat room or a virtual
world. A missive in cyberspace belies the discretion borne of
patience found in old-fashioned letters. Note that lawyers are
subject to regulation for conduct occurring in one’s private, as well
as professional, life. Kiting a check or engaging in
misrepresentation in cyberspace, even if not in the act of practicing
law, could subject one to discipline. See, e.g. Matter of Ring, 427
Mass. 186 (1998).
Virtual World Rights and Duties
Second Life is a virtual online community, in which “residents” are
represented by avatars that can communicate, socialize, buy, sell,
barter and provide services. Virtual (and real) law firms “exist” in
such worlds. Some lawyers are using Second Life to recruit realworld clients. By chatting, advertising, and participating in virtual
activities, lawyers are looking for potential clients in this
alternative medium. (See, Stephanie Francis Ward, Fantasy Life, Real
Law, A.B.A. J., Mar. 2007.) Advertisement or solicitation will
generate real world oversight. In one instance, lawyers used social
networking sites to gain information to defend a criminal client.
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They then posted a story online explaining how they used social
networking sites with success, thus running the risk of advertising
or other violations in some states.
Some state bar associations believe that virtual activity that is
“sufficiently game-like” might avoid bar scrutiny even if it
generates real work. See, Stephanie Francis Ward, Fantasy Life, Real
Law, A.B.A. J., Mar. 2007. Some bar officials have stated, informally,
that regulation of such “game like” activity in a virtual
environment might not even be worth undertaking. But,
misconduct even within a virtual site runs the risk of bar
regulation, as well as disgorgement of ill-gained fees, civil
exposure and certain potential criminal exposure (UPL, for
example). Non game-like activity in cyberspace is increasingly
attracting the attention of real world regulators and prosecutors.
See, e.g., Amsterdam, Netherlands: 10/08: Dutch court convicts two
youths of theft for stealing virtual items in a computer game ("These
virtual goods are goods (under Dutch law) so this is theft," the
court said Tuesday in a summary of its ruling)
(http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&obje
ctid=10538822);
and, Tokyo 10/08: Online divorcee jailed after killing virtual hubby
(Woman is accused of illegally using login information she got
from a 33-year-old office worker when their characters were
happily married to access the virtual world and kill the character.
The man complained to police when he discovered that his beloved
online avatar was dead).
(http://news.yahoo.com/s/ap/20081023/ap_on_re_as/as_japan_avatar_
murder)
Lawyer complaints won’t be far behind!
Conclusion
The risks and rewards in cyberspace parallel conventional world
activity. “Boldly go” where lawyers have not gone before, but
“look before you leap”!
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February 21, 2012
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The views expressed herein have not been approved by the House of Delegates or the Board of
Governors of the American Bar Association and, accordingly, should not be construed as
representing the policy of the American Bar Association.
American Bar Association
Commission on Ethics 20/20
Resolutions
RESOLVED: That the American Bar Association amends Model Rule 1.0
(Terminology) of the ABA Model Rules of Professional Conduct as follows
(insertions underlined, deletions struck through):
Rule 1.0 Terminology
(a) ‘‘Belief’’ or ‘‘believes’’ denotes that the person involved actually supposed the
fact in question to be true. A person’s belief may be inferred from circumstances.
(b) ‘‘Confirmed in writing,’’ when used in reference to the informed consent of a
person, denotes informed consent that is given in writing by the person or a writing
that a lawyer promptly transmits to the person confirming an oral informed
consent. See paragraph (e) for the definition of ‘‘informed consent.’’ If it is not
feasible to obtain or transmit the writing at the time the person gives informed
consent, then the lawyer must obtain or transmit it within a reasonable time
thereafter.
(c) ‘‘Firm’’ or ‘‘law firm’’ denotes a lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship or other association authorized to
practice law; or lawyers employed in a legal services organization or the legal
department of a corporation or other organization.
(d) ‘‘Fraud’’ or ‘‘fraudulent’’ denotes conduct that is fraudulent under the
substantive or procedural law of the applicable jurisdiction and has a purpose to
deceive.
(e) ‘‘Informed consent’’ denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed
course of conduct.
(f) ‘‘Knowingly,’’ ‘‘known,’’ or ‘‘knows’’ denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.
(g) ‘‘Partner’’ denotes a member of a partnership, a shareholder in a law firm
organized as a professional corporation, or a member of an association authorized
to practice law.
(h) ‘‘Reasonable’’ or ‘‘reasonably’’ when used in relation to conduct by a lawyer
denotes the conduct of a reasonably prudent and competent lawyer.
(i) ‘‘Reasonable belief’’ or ‘‘reasonably believes’’ when used in reference to a
lawyer denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.
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February 21, 2012
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(j) ‘‘Reasonably should know’’ when used in reference to a lawyer denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in
question.
(k) ‘‘Screened’’ denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated lawyer is
obligated to protect under these Rules or other law.
(l) ‘‘Substantial’’ when used in reference to degree or extent denotes a material
matter of clear and weighty importance.
(m) ‘‘Tribunal’’ denotes a court, an arbitrator in a binding arbitration proceeding
or a legislative body, administrative agency or other body acting in an adjudicative
capacity. A legislative body, administrative agency or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will render a binding legal judgment directly
affecting a party’s interests in a particular matter.
(n) ‘‘Writing’’ or ‘‘written’’ denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing,
photostating, photography, audio or video recording and e-mail. A ‘‘signed’’
writing includes an electronic sound, symbol or process attached to or logically
associated with a writing and executed or adopted by a person with the intent to
sign the writing.
COMMENT
Confirmed in Writing
[1] If it is not feasible to obtain or transmit a written confirmation at the time the
client gives informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter. If a lawyer has obtained a client’s informed consent, the
lawyer may act in reliance on that consent so long as it is confirmed in writing within a
reasonable time thereafter.
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (c) can
depend on the specific facts. For example, two practitioners who share office space and
occasionally consult or assist each other ordinarily would not be regarded as constituting
a firm. However, if they present themselves to the public in a way that suggests that they
are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes
of the Rules. The terms of any formal agreement between associated lawyers are relevant
in determining whether they are a firm, as is the fact that they have mutual access to
information concerning the clients they serve. Furthermore, it is relevant in doubtful
cases to consider the underlying purpose of the Rule that is involved. A group of lawyers
could be regarded as a firm for purposes of the Rule that the same lawyer should not
represent opposing parties in litigation, while it might not be so regarded for purposes of
the Rule that information acquired by one lawyer is attributed to another.
[3] With respect to the law department of an organization, including the
government, there is ordinarily no question that the members of the department constitute
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a firm within the meaning of the Rules of Professional Conduct. There can be
uncertainty, however, as to the identity of the client. For example, it may not be clear
whether the law department of a corporation represents a subsidiary or an affiliated
corporation, as well as the corporation by which the members of the department are
directly employed. A similar question can arise concerning an unincorporated association
and its local affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid and legal
services organizations. Depending upon the structure of the organization, the entire
organization or different components of it may constitute a firm or firms for purposes of
these Rules.
Fraud
[5] When used in these Rules, the terms ‘‘fraud’’ or ‘‘fraudulent’’ refer to conduct
that is characterized as such under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive. This does not include merely negligent
misrepresentation or negligent failure to apprise another of relevant information. For
purposes of these Rules, it is not necessary that anyone has suffered damages or relied on
the misrepresentation or failure to inform.
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the
informed consent of a client or other person (e.g., a former client or, under certain
circumstances, a prospective client) before accepting or continuing representation or
pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The
communication necessary to obtain such consent will vary according to the Rule involved
and the circumstances giving rise to the need to obtain informed consent. The lawyer
must make reasonable efforts to ensure that the client or other person possesses
information reasonably adequate to make an informed decision. Ordinarily, this will
require communication that includes a disclosure of the facts and circumstances giving
rise to the situation, any explanation reasonably necessary to inform the client or other
person of the material advantages and disadvantages of the proposed course of conduct
and a discussion of the client’s or other person’s options and alternatives. In some
circumstances it may be appropriate for a lawyer to advise a client or other person to seek
the advice of other counsel. A lawyer need not inform a client or other person of facts or
implications already known to the client or other person; nevertheless, a lawyer who does
not personally inform the client or other person assumes the risk that the client or other
person is inadequately informed and the consent is invalid. In determining whether the
information and explanation provided are reasonably adequate, relevant factors include
whether the client or other person is experienced in legal matters generally and in making
decisions of the type involved, and whether the client or other person is independently
represented by other counsel in giving the consent. Normally, such persons need less
information and explanation than others, and generally a client or other person who is
independently represented by other counsel in giving the consent should be assumed to
have given informed consent.
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[7] Obtaining informed consent will usually require an affirmative response by
the client or other person. In general, a lawyer may not assume consent from a client’s or
other person’s silence. Consent may be inferred, however, from the conduct of a client or
other person who has reasonably adequate information about the matter. A number of
Rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and
1.9(a). For a definition of ‘‘writing’’ and ‘‘confirmed in writing,’’ see paragraphs (n) and
(b). Other Rules require that a client’s consent be obtained in a writing signed by the
client. See, e.g., Rules 1.8(a) and (g). For a definition of ‘‘signed,’’ see paragraph (n).
Screened
[8] This definition applies to situations where screening of a personally
disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules
1.10, 1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential
information known by the personally disqualified lawyer remains protected. The
personally disqualified lawyer should acknowledge the obligation not to communicate
with any of the other lawyers in the firm with respect to the matter. Similarly, other
lawyers in the firm who are working on the matter should be informed that the screening
is in place and that they may not communicate with the personally disqualified lawyer
with respect to the matter. Additional screening measures that are appropriate for the
particular matter will depend on the circumstances. To implement, reinforce and remind
all affected lawyers of the presence of the screening, it may be appropriate for the firm to
undertake such procedures as a written undertaking by the screened lawyer to avoid any
communication with other firm personnel and any contact with any firm files or other
materials information, including information in electronic form, relating to the matter,
written notice and instructions to all other firm personnel forbidding any communication
with the screened lawyer relating to the matter, denial of access by the screened lawyer to
firm files or other materials information, including information in electronic form,
relating to the matter, and periodic reminders of the screen to the screened lawyer and all
other firm personnel.
[10] In order to be effective, screening measures must be implemented as soon as
practical after a lawyer or law firm knows or reasonably should know that there is a need
for screening.
FURTHER RESOLVED: That the American Bar Association amends Model Rule
1.1 (Competence) of the ABA Model Rules of Professional Conduct as follows
(insertions underlined, deletions struck through):
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
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COMMENT
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill in
a particular matter, relevant factors include the relative complexity and specialized nature
of the matter, the lawyer’s general experience, the lawyer’s training and experience in the
field in question, the preparation and study the lawyer is able to give the matter and
whether it is feasible to refer the matter to, or associate or consult with, a lawyer of
established competence in the field in question. In many instances, the required
proficiency is that of a general practitioner. Expertise in a particular field of law may be
required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to
handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted
lawyer can be as competent as a practitioner with long experience. Some important legal
skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are
required in all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill that necessarily
transcends any particular specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study. Competent representation
can also be provided through the association of a lawyer of established competence in the
field in question.
[3] In an emergency a lawyer may give advice or assistance in a matter in which
the lawyer does not have the skill ordinarily required where referral to or consultation or
association with another lawyer would be impractical. Even in an emergency, however,
assistance should be limited to that reasonably necessary in the circumstances, for illconsidered action under emergency conditions can jeopardize the client’s interest.
[4] A lawyer may accept representation where the requisite level of competence
can be achieved by reasonable preparation. This applies as well to a lawyer who is
appointed as counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and analysis of
the factual and legal elements of the problem, and use of methods and procedures
meeting the standards of competent practitioners. It also includes adequate preparation.
The required attention and preparation are determined in part by what is at stake; major
litigation and complex transactions ordinarily require more extensive treatment than
matters of lesser complexity and consequence. An agreement between the lawyer and the
client regarding the scope of the representation may limit the matters for which the
lawyer is responsible. See Rule 1.2 (c).
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of
changes in the law and its practice, including the benefits and risks associated with
technology, engage in continuing study and education and comply with all continuing
legal education requirements to which the lawyer is subject.
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FURTHER RESOLVED: That the American Bar Association amends Model Rule
1.4 (Communication) of the ABA Model Rules of Professional Conduct as follows
(insertions underlined, deletions struck through):
Rule 1.4 Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to
which the client's informed consent, as defined in Rule 1.0(e), is required by these
Rules;
(2) reasonably consult with the client about the means by which the client's
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's
conduct when the lawyer knows that the client expects assistance not permitted by
the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
COMMENT
[1] Reasonable communication between the lawyer and the client is necessary for
the client effectively to participate in the representation.
Communicating with Client
[2] If these Rules require that a particular decision about the representation be
made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and
secure the client's consent prior to taking action unless prior discussions with the client
have resolved what action the client wants the lawyer to take. For example, a lawyer who
receives from opposing counsel an offer of settlement in a civil controversy or a proffered
plea bargain in a criminal case must promptly inform the client of its substance unless the
client has previously indicated that the proposal will be acceptable or unacceptable or has
authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).
[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client
about the means to be used to accomplish the client's objectives. In some situations —
depending on both the importance of the action under consideration and the feasibility of
consulting with the client — this duty will require consultation prior to taking action. In
other circumstances, such as during a trial when an immediate decision must be made, the
exigency of the situation may require the lawyer to act without prior consultation. In such
cases the lawyer must nonetheless act reasonably to inform the client of actions the
lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the
lawyer keep the client reasonably informed about the status of the matter, such as
significant developments affecting the timing or the substance of the representation.
[4] A lawyer's regular communication with clients will minimize the occasions on
which a client will need to request information concerning the representation. When a
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client makes a reasonable request for information, however, paragraph (a)(4) requires
prompt compliance with the request, or if a prompt response is not feasible, that the
lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise
the client when a response may be expected. Client telephone calls should be promptly
returned or acknowledged. Lawyers should promptly respond to or acknowledge client
communications.
Explaining Matters
[5] The client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by which they
are to be pursued, to the extent the client is willing and able to do so. Adequacy of
communication depends in part on the kind of advice or assistance that is involved. For
example, when there is time to explain a proposal made in a negotiation, the lawyer
should review all important provisions with the client before proceeding to an agreement.
In litigation a lawyer should explain the general strategy and prospects of success and
ordinarily should consult the client on tactics that are likely to result in significant
expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be
expected to describe trial or negotiation strategy in detail. The guiding principle is that
the lawyer should fulfill reasonable client expectations for information consistent with
the duty to act in the client's best interests, and the client's overall requirements as to the
character of representation. In certain circumstances, such as when a lawyer asks a client
to consent to a representation affected by a conflict of interest, the client must give
informed consent, as defined in Rule 1.0(e).
[6] Ordinarily, the information to be provided is that appropriate for a client who
is a comprehending and responsible adult. However, fully informing the client according
to this standard may be impracticable, for example, where the client is a child or suffers
from diminished capacity. See Rule 1.14. When the client is an organization or group, it
is often impossible or inappropriate to inform every one of its members about its legal
affairs; ordinarily, the lawyer should address communications to the appropriate officials
of the organization. See Rule 1.13. Where many routine matters are involved, a system of
limited or occasional reporting may be arranged with the client.
Withholding Information
[7] In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate
communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when
the examining psychiatrist indicates that disclosure would harm the client. A lawyer may
not withhold information to serve the lawyer's own interest or convenience or the
interests or convenience of another person. Rules or court orders governing litigation may
provide that information supplied to a lawyer may not be disclosed to the client. Rule
3.4(c) directs compliance with such rules or orders.
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FURTHER RESOLVED: That the American Bar Association amends Model Rule
1.6 (Duty of Confidentiality) of the ABA Model Rules of Professional Conduct as
follows (insertions underlined, deletions struck through):
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation or the disclosure is permitted by paragraph
(b).
(b) A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably
certain to result in substantial injury to the financial interests or property of
another and in furtherance of which the client has used or is using the lawyer’s
services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests
or property of another that is reasonably certain to result or has resulted from the
client’s commission of a crime or fraud in furtherance of which the client has used
the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or civil
claim against the lawyer based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer’s representation of
the client; or(6) to comply with other law or a court order.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating to the
representation of a client.
COMMENT
[1] This Rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer’s representation of the client. See Rule 1.18
for the lawyer’s duties with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating
to the lawyer’s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for
the lawyer’s duties with respect to the use of such information to the disadvantage of
clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the
absence of the client’s informed consent, the lawyer must not reveal information relating
to the representation. See Rule 1.0(e) for the definition of informed consent. This
contributes to the trust that is the hallmark of the client-lawyer relationship. The client is
thereby encouraged to seek legal assistance and to communicate fully and frankly with
the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs
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this information to represent the client effectively and, if necessary, to advise the client to
refrain from wrongful conduct. Almost without exception, clients come to lawyers in
order to determine their rights and what is, in the complex of laws and regulations,
deemed to be legal and correct. Based upon experience, lawyers know that almost all
clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies
of law: the attorney-client privilege, the work-product doctrine and the rule of
confidentiality established in professional ethics. The attorney-client privilege and workproduct doctrine apply in judicial and other proceedings in which a lawyer may be called
as a witness or otherwise required to produce evidence concerning a client. The rule of
client-lawyer confidentiality applies in situations other than those where evidence is
sought from the lawyer through compulsion of law. The confidentiality rule, for example,
applies not only to matters communicated in confidence by the client but also to all
information relating to the representation, whatever its source. A lawyer may not disclose
such information except as authorized or required by the Rules of Professional Conduct
or other law. See also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the
representation of a client. This prohibition also applies to disclosures by a lawyer that do
not in themselves reveal protected information but could reasonably lead to the discovery
of such information by a third person. A lawyer’s use of a hypothetical to discuss issues
relating to the representation is permissible so long as there is no reasonable likelihood
that the listener will be able to ascertain the identity of the client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client’s instructions or special circumstances limit
that authority, a lawyer is impliedly authorized to make disclosures about a client when
appropriate in carrying out the representation. In some situations, for example, a lawyer
may be impliedly authorized to admit a fact that cannot properly be disputed or to make a
disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in
the course of the firm’s practice, disclose to each other information relating to a client of
the firm, unless the client has instructed that particular information be confined to
specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring
lawyers to preserve the confidentiality of information relating to the representation of
their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1)
recognizes the overriding value of life and physical integrity and permits disclosure
reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such
harm is reasonably certain to occur if it will be suffered imminently or if there is a
present and substantial threat that a person will suffer such harm at a later date if the
lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows
that a client has accidentally discharged toxic waste into a town’s water supply may
reveal this information to the authorities if there is a present and substantial risk that a
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person who drinks the water will contract a life-threatening or debilitating disease and the
lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.
[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that
permits the lawyer to reveal information to the extent necessary to enable affected
persons or appropriate authorities to prevent the client from committing a crime or fraud,
as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the
financial or property interests of another and in furtherance of which the client has used
or is using the lawyer’s services. Such a serious abuse of the client-lawyer relationship by
the client forfeits the protection of this Rule. The client can, of course, prevent such
disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not
require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist
the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also
Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the
representation of the client in such circumstances, and Rule 1.13(c), which permits the
lawyer, where the client is an organization, to reveal information relating to the
representation in limited circumstances.
[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of
the client’s crime or fraud until after it has been consummated. Although the client no
longer has the option of preventing disclosure by refraining from the wrongful conduct,
there will be situations in which the loss suffered by the affected person can be prevented,
rectified or mitigated. In such situations, the lawyer may disclose information relating to
the representation to the extent necessary to enable the affected persons to prevent or
mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3)
does not apply when a person who has committed a crime or fraud thereafter employs a
lawyer for representation concerning that offense.
[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing
confidential legal advice about the lawyer’s personal responsibility to comply with these
Rules. In most situations, disclosing information to secure such advice will be impliedly
authorized for the lawyer to carry out the representation. Even when the disclosure is not
impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance
of a lawyer’s compliance with the Rules of Professional Conduct.
[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer
in a client’s conduct or other misconduct of the lawyer involving representation of the
client, the lawyer may respond to the extent the lawyer reasonably believes necessary to
establish a defense. The same is true with respect to a claim involving the conduct or
representation of a former client. Such a charge can arise in a civil, criminal, disciplinary
or other proceeding and can be based on a wrong allegedly committed by the lawyer
against the client or on a wrong alleged by a third person, for example, a person claiming
to have been defrauded by the lawyer and client acting together. The lawyer’s right to
respond arises when an assertion of such complicity has been made. Paragraph (b)(5)
does not require the lawyer to await the commencement of an action or proceeding that
charges such complicity, so that the defense may be established by responding directly to
a third party who has made such an assertion. The right to defend also applies, of course,
where a proceeding has been commenced.
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[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the
services rendered in an action to collect it. This aspect of the rule expresses the principle
that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the
fiduciary.
[12] Other law may require that a lawyer disclose information about a client.
Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these
Rules. When disclosure of information relating to the representation appears to be
required by other law, the lawyer must discuss the matter with the client to the extent
required by Rule 1.4. If, however, the other law supersedes this Rule and requires
disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary
to comply with the law.
[13] A lawyer may be ordered to reveal information relating to the representation
of a client by a court or by another tribunal or governmental entity claiming authority
pursuant to other law to compel the disclosure. Absent informed consent of the client to
do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that
the order is not authorized by other law or that the information sought is protected against
disclosure by the attorney-client privilege or other applicable law. In the event of an
adverse ruling, the lawyer must consult with the client about the possibility of appeal to
the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6)
permits the lawyer to comply with the court’s order.
[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably
believes the disclosure is necessary to accomplish one of the purposes specified. Where
practicable, the lawyer should first seek to persuade the client to take suitable action to
obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest
should be no greater than the lawyer reasonably believes necessary to accomplish the
purpose. If the disclosure will be made in connection with a judicial proceeding, the
disclosure should be made in a manner that limits access to the information to the tribunal
or other persons having a need to know it and appropriate protective orders or other
arrangements should be sought by the lawyer to the fullest extent practicable.
[15] Paragraph (b) permits but does not require the disclosure of information
relating to a client’s representation to accomplish the purposes specified in paragraphs
(b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may
consider such factors as the nature of the lawyer’s relationship with the client and with
those who might be injured by the client, the lawyer’s own involvement in the transaction
and factors that may extenuate the conduct in question. A lawyer’s decision not to
disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be
required, however, by other Rules. Some Rules require disclosure only if such disclosure
would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on
the other hand, requires disclosure in some circumstances regardless of whether such
disclosure is permitted by this Rule. See Rule 3.3(c).
Acting Competently to Preserve Confidentiality
[16] Paragraph (c) requires a A lawyer must to act competently to safeguard
information relating to the representation of a client against unauthorized access by third
parties and against inadvertent or unauthorized disclosure by the lawyer or other persons
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or entities who are participating in the representation of the client or who are subject to
the lawyer’s supervision or monitoring. See Rules 1.1, 5.1 and 5.3. The unauthorized
access to, or the inadvertent or unauthorized disclosure of, confidential information does
not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to
prevent the access or disclosure. Factors to be considered in determining the
reasonableness of the lawyer’s efforts include the sensitivity of the information, the
likelihood of disclosure if additional safeguards are not employed, the cost of employing
additional safeguards, the difficulty of implementing the safeguards, and the extent to
which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by
making a device or important piece of software excessively difficult to use). A client may
require the lawyer to implement special security measures not required by this Rule or
may give informed consent to forego security measures that would otherwise be required
by this Rule. Whether a lawyer may be required to take additional steps to safeguard a
client’s information in order to comply with other law, such as state and federal laws that
govern data privacy or that impose notification requirements upon the loss of, or
unauthorized access to, electronic information, is beyond the scope of these Rules.
[17] When transmitting a communication that includes information relating to the
representation of a client, the lawyer must take reasonable precautions to prevent the
information from coming into the hands of unintended recipients. This duty, however,
does not require that the lawyer use special security measures if the method of
communication affords a reasonable expectation of privacy. Special circumstances,
however, may warrant special precautions. Factors to be considered in determining the
reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the communication is protected by law
or by a confidentiality agreement. A client may require the lawyer to implement special
security measures not required by this Rule or may give informed consent to the use of a
means of communication that would otherwise be prohibited by this Rule. Whether a
lawyer may be required to take additional steps in order to comply with other law, such
as state and federal laws that govern data privacy, is beyond the scope of these Rules.
Former Client
[18] The duty of confidentiality continues after the client-lawyer relationship has
terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such
information to the disadvantage of the former client.
FURTHER RESOLVED: That the American Bar Association amends Model Rule
4.4 (Respect for Rights of Third Persons) of the ABA Model Rules of Professional
Conduct as follows (insertions underlined, deletions struck through):
Rule 4.4 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a person.
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(b) A lawyer who receives a document or electronically stored information relating
to the representation of the lawyer’s client and knows or reasonably should know
that the document or electronically stored information was inadvertently sent shall
promptly notify the sender.
COMMENT
[1] Responsibility to a client requires a lawyer to subordinate the interests of
others to those of the client, but that responsibility does not imply that a lawyer may
disregard the rights of third persons. It is impractical to catalogue all such rights, but they
include legal restrictions on methods of obtaining evidence from third persons and
unwarranted intrusions into privileged relationships, such as the client-lawyer
relationship.
[2] Paragraph (b) recognizes that lawyers sometimes receive a documents or
electronically stored information that were was mistakenly sent or produced by opposing
parties or their lawyers. A document or electronically stored information is inadvertently
sent when it is accidentally transmitted to an unintended recipient, such as when an email
or letter is misaddressed or when a document or electronically stored information is
accidentally included in discovery. If a lawyer knows or reasonably should know that
such a document or electronically stored information was sent inadvertently, then this
Rule requires the lawyer to promptly notify the sender in order to permit that person to
take protective measures. Whether the lawyer is required to take additional steps, such as
returning the document or electronically stored information original document, is a matter
of law beyond the scope of these Rules, as is the question of whether the privileged status
of a document or electronically stored information has been waived. Similarly, this Rule
does not address the legal duties of a lawyer who receives a document or electronically
stored information that the lawyer knows or reasonably should know may have been
wrongfully inappropriately obtained by the sending person. For purposes of this Rule,
‘‘document or electronically stored information’’ includes, in addition to paper
documents, email and other forms of electronically stored information, including
embedded data (commonly referred to as “metadata”), that is email or other electronic
modes of transmission subject to being read or put into readable form. Receipt of
electronic information containing “metadata” does not, by itself, mean that the
information was inadvertently sent.
[3] Some lawyers may choose to return a document or electronically stored
information unread, for example, when the lawyer learns before receiving it the document
that it was inadvertently sent to the wrong address. Where a lawyer is not required by
applicable law to do so, the decision to voluntarily return such a document or
electronically stored information is a matter of professional judgment ordinarily reserved
to the lawyer. See Rules 1.2 and 1.4.
13
Page 59 of 85
February 21, 2012
The views expressed herein have not been approved by the House of Delegates or the Board of
Governors of the American Bar Association and, accordingly, should not be construed as
representing the policy of the American Bar Association.
REPORT
Introduction
Advances in technology have enabled lawyers in all practice settings to provide more
efficient and effective legal services. Some forms of technology, however, present certain risks,
particularly with regard to clients’ confidential information. One of the objectives of the ABA
Commission on Ethics 20/20 has been to develop guidance for lawyers regarding their ethical
obligations to protect this information when using technology.
The Commission recommends two ways to provide this guidance. First, the Commission
has asked that the ABA Center for Professional Responsibility work with relevant entities within
the Association to create a centralized user-friendly website that contains continuously updated
and detailed information about confidentiality-related ethics issues arising from lawyers’ use of
technology, including the latest data security standards. The ABA’s Legal Technology Resource
Center and Law Practice Management Section’s eLawyering Task Force have developed
excellent technology-related resources, but those resources exist in different places on the ABA
website. The Commission found that lawyers are seeking a website that serves as a centralized
and continuously updated resource on these issues.
The Commission believes that the information contained on this website should be
presented in such a way that lawyers who may not have extensive knowledge about technology
and associated ethics issues can easily understand the information. For example, this resource
should identify the key issues that lawyers should consider when using technology in their
practices, such as the administrative, technical, and physical safeguards that should be employed.
The resource should also highlight additional cutting-edge and more sophisticated topics. The
website also should include regularly updated information about security standards, including the
identification of standards-setting organizations, so that lawyers can more easily determine
whether the technology that they employ is compliant with those standards. In sum, the
Commission concluded that this web-based resource is critical given that rule-based guidance
and ethics opinions are insufficiently nimble to address the constantly changing nature of
technology and the regularly evolving security risks associated with that technology.
Second, the Commission is proposing to amend several Model Rules of Professional
Conduct and their Comments. Unlike the proposed website, which can be regularly updated in
light of new technology and changing security concerns, the Rule and Comment-based proposals
necessarily offer more general guidance and do not offer advice regarding the use of any
particular type of technology.
The Commission identified four areas that would benefit from this more general
guidance. First, the Commission concluded that technology has raised new issues for law firms
that employ screens pursuant to Model Rules 1.10, 1.11, 1.12, and 1.18. The Commission
Page 60 of 85
February 21, 2012
determined that it is important to make clear that a screen must necessarily include protections
against the sharing of both tangible as well as electronic information. Thus, the Commission is
proposing an amendment to address this point in Comment [9] of Model Rule 1.0 (Terminology),
which concerns the definition of a screen under Model Rule 1.0(k).
Second, the Commission concluded that competent lawyers must have some awareness of
basic features of technology. To make this point, the Commission is recommending an
amendment to Comment [6] of Model Rule 1.1 (Competence) that would emphasize that, in
order to stay abreast of changes in the law and its practice, lawyers need to have a basic
understanding of technology’s benefits and risks.
Third, the Commission is proposing a change to the last sentence of Comment [4] to
Model Rule 1.4, which currently says that, “[c]lient telephone calls should be promptly returned
or acknowledged.” The Commission proposes to replace that admonition with the following
language: “Lawyers should promptly respond to or acknowledge client communications.”
Although not related to a lawyer’s confidentiality obligations, the Commission nevertheless
concluded that this language more accurately describes a lawyer’s obligations in light of the
increasing number of ways in which clients use technology to communicate with lawyers, such
as by email.
Fourth, the Commission is proposing to add a new paragraph to the black letter
provisions of Model Rule 1.6 (Confidentiality of Information). Proposed new Model Rule 1.6(c)
would make clear that a lawyer has an ethical duty to take reasonable measures to protect a
client’s confidential information from inadvertent or unauthorized disclosures as well as from
unauthorized access. This duty is already described in several existing Comments, but the
Commission concluded that, in light of the pervasive use of technology to store and transmit
confidential client information, this existing obligation should be stated explicitly in the black
letter of Model Rule 1.6. The Commission also concluded that the Comments should be
amended to offer lawyers more guidance about how to comply with this obligation.
Finally, the Commission is proposing new language to clarify the scope of Model Rule
4.4(b), which concerns a lawyer’s obligations upon receiving inadvertently disclosed confidential
information. The current provision describes the receipt of “documents” containing such
information, but confidential information can also take the form of electronically stored
information. Thus, the Commission is proposing to amend Rule 4.4(b) to make clear that the
Rule governs both paper documents as well as electronically stored information. Moreover, the
Commission is proposing to define the phrase “inadvertently sent” in Comment [2] to give
lawyers more guidance as to when Rule 4.4(b) is triggered.
The Commission concluded that these clarifying amendments are necessary to make
lawyers more aware of their confidentiality-related obligations when taking advantage of
technology’s many benefits. These proposals are set out in the Resolutions that accompany this
Report and are described in more detail below.
Page 61 of 85
February 21, 2012
I. Model Rule 1.0(k) (Terminology; Screening)
Model Rule 1.0 is the Terminology Section of the Model Rules. Model Rule 1.0(k)
describes the procedures for an effective screen to avoid the imputation of a conflict of interest
under Model Rules 1.10, 1.11, 1.12, and 1.18. Comment [9] elaborates on this definition and
notes that one important feature of a screen is to limit the screened lawyer’s access to any
information that relates to the matter giving rise to the conflict.
Advances in technology have made client information more accessible to the whole firm,
so the process of limiting access to this information should require more than placing relevant
physical documents in an inaccessible location; it should require appropriate treatment of
electronic information as well. Although this requirement is arguably encompassed within the
existing version of Rule 1.0(k) and Comment [9], the Commission concluded and heard that
greater clarity and specificity is needed. To that end, the Commission is proposing that
Comment [9] explicitly note that, when a screen is put in place, it should apply to information
that is in electronic, as well as tangible, form.
II. Model Rule 1.1 (Competence)
Model Rule 1.1 requires a lawyer to provide competent representation, and Comment [6]
specifies that, to remain competent, lawyers need to “keep abreast of changes in the law and its
practice.” The Commission concluded that, in order to keep abreast of changes in law practice,
lawyers necessarily need to understand basic features of technology and that this aspect of
competence should be expressed in the Comment. For example, a lawyer would have difficulty
providing competent legal services in today’s environment without knowing how to use email or
to create or edit an electronic document.
Comment [6] already encompasses an obligation to remain aware of changes in
technology that affect law practice, but the Commission concluded that the addition of the phrase
“including the benefits and risks associated with technology” would offer greater clarity
regarding a lawyer’s obligations in this area and emphasize the importance of technology to
modern law practice. The proposed amendment does not impose any new obligations on
lawyers. Rather, the amendment is intended to emphasize that a lawyer should remain aware of
technology, including the benefits and risks associated with it, as part of a lawyer’s general
ethical duty to remain competent.
III. Model Rule 1.4 (Communication)
Model Rule 1.4 describes a lawyer’s duty to communicate with clients, and the last
sentence of Comment [4] to Model Rule 1.4 currently instructs lawyers that “[c]lient telephone
calls should be promptly returned or acknowledged.” Clients, however, now communicate with
lawyers in an increasing number of ways, including by email, so a lawyer’s obligation to respond
to such communications exists regardless of the medium that is used. Accordingly, the
Commission proposes to replace the last sentence of Comment [4] with the following language:
“Lawyers should promptly respond to or acknowledge client communications.” The
Page 62 of 85
February 21, 2012
Commission concluded that this language more accurately describes a lawyer’s obligations in
light of changes in technology and evolving methods of communication.
IV. Model Rule 1.6 (Duty of Confidentiality)
Currently, Model Rule 1.6(a) states that a lawyer has a duty not to reveal a client’s
confidential information, except for the circumstances described in Model Rule 1.6(b). The
Rule, however, does not indicate what ethical obligations lawyers have to prevent such a
revelation. Although this obligation is described in Comments [16] and [17], the Commission
concluded that technology has made this duty sufficiently important that it should be elevated to
black letter status in the form of the proposed Model Rule 1.6(c).
The idea of explaining a lawyer’s duty to safeguard information within the black letter of
the Rule is not new. The proposed Model Rule 1.6(c) builds on a similar provision in New York,
which itself has its roots in DR 4-101(D) of the old Model Code of Professional Responsibility.
DR 4-101(D) had provided as follows:
(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and
others whose services are utilized by him from disclosing or using confidences or
secrets of a client, except that a lawyer may reveal the information allowed by DR 4101(C) through an employee.
The Commission concluded that a similar provision should appear in Model Rule 1.6 given the
various confidentiality concerns associated with electronically stored information.
The proposal identifies three types of problems that can lead to the unintended disclosure
of confidential information. First, information can be inadvertently disclosed, such as when an
email is sent to the wrong person. Second, information can be accessed without authority, such
as when a third party “hacks” into a law firm’s network or a lawyer’s email account. Third,
information can be disclosed when employees or other personnel release it without authority,
such as when an employee posts confidential information on the Internet. Rule 1.6(c) is intended
to make clear that lawyers have an ethical obligation to make reasonable efforts to prevent these
types of disclosures, such as by using reasonably available administrative, technical, and
physical safeguards.
To be clear, paragraph (c) does not mean that a lawyer engages in professional
misconduct any time a client’s confidences are subject to unauthorized access or disclosed
inadvertently or without authority. A sentence in Comment [16] makes this point explicitly. The
reality is that disclosures can occur even if lawyers take all reasonable precautions. The
Commission, however, believes that it is important to state in the black letter of Model Rule 1.6
that lawyers have a duty to take reasonable precautions, even if those precautions will not
guarantee the protection of confidential information under all circumstances.
The Commission examined the possibility of offering more detailed guidance about the
measures that lawyers should employ. The Commission concluded, however, that technology is
changing too rapidly to offer such guidance and that the particular measures lawyers should use
Page 63 of 85
February 21, 2012
will necessarily change as technology evolves and as new risks emerge and new security
procedures become available. Nevertheless, the Commission is proposing new language to
Comment [16] to identify several factors that lawyers should consider when determining whether
their efforts are reasonable, including the sensitivity of the information, the likelihood of
disclosure if additional safeguards are not employed, the cost of employing additional
safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards
adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important
piece of software excessively difficult to use). Moreover, as explained above, the Commission
has recommended that the ABA create a centralized user-friendly website that contains
continuously updated and detailed information about data security.
In addition to setting out the factors that lawyers need to consider when securing their
clients’ confidences, the proposed Comment language recognizes that some clients might require
the lawyer to implement special security measures not required by the Rule or may give
informed consent to the use of security measures that would otherwise be prohibited by the Rule.
A nearly identical observation appears in Comment [17] in the context of security measures that
lawyers might have to employ when transmitting confidential information. The Commission
concluded that a similar thought should be expressed in the context of Comment [16], which
pertains to the storage of such information.
Finally, the Commission’s research revealed that there has been a dramatic growth in
federal, state, and international laws and regulations relating to data privacy. The Commission
found that this body of law increasingly applies to lawyers and law firms and that lawyers need
to be aware of these additional obligations. Thus, the Commission is proposing to add a sentence
to the end of Comment [16] and Comment [17] that would remind lawyers that other laws and
regulations impose confidentiality-related obligations beyond those that are identified in the
Model Rules of Professional Conduct. Other Comments in the Model Rules instruct lawyers to
consult law outside of the ethics rules, and the Commission concluded that a lawyer’s duty of
confidentiality is another area where other legal obligations have become sufficiently important
and common that lawyer should be expressly reminded to consider those obligations, both when
storing confidential information (Comment [16]) and when transmitting it (Comment [17]).
V. Model Rule 4.4 (Respect for Rights of Third Persons)
Technology has increased the risk that confidential information will be inadvertently
disclosed, and Model Rule 4.4(b) addresses one particular ethics issue associated with this risk.
Namely, it provides that, if lawyers receive documents that they know or reasonably should
know were inadvertently sent to them, they must notify the sender.
The Commission concluded that the word “document” is inadequate to express the
various ways in which information can be inadvertently disclosed. For example, confidential
information can now be disclosed in emails, flash drives, and data embedded in electronic
documents (i.e., metadata). To make clear that the Rule applies to those situations, the
Commission is proposing that the word “document” be replaced with a phrase that is commonly
used in the context of discovery – “document or electronically stored information.”
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ABA Commission on Ethics 20/20 Revised Draft Report for Comment—Technology and
Confidentiality
February 21, 2012
In addition to clarifying that Rule 4.4(b) extends to various forms of electronic
information, Comment [2] expressly states that metadata is included within the scope of the
Rule, at least when the receiving lawyer knows or has reason to believe that the metadata was not
intended to be disclosed. The Comment makes clear that the mere existence of metadata in a
document does not give rise to a duty under this Rule, but if a lawyer discovers that an electronic
document contains confidential metadata, that discovery may implicate the Rule’s reporting
requirement.
ABA Formal Opinion 06-442 addressed the related issue of whether lawyers should even
be permitted to look at a sending party’s electronic metadata. That opinion concluded that there
is no ethical prohibition against doing so. Several state bar association ethics opinions, however,
have reached the opposite conclusion and have said that lawyers should typically not be
permitted to look at an opposing party’s metadata.
Implicit in the Commission’s
recommendation is that lawyers will, in fact, be permitted to look at metadata, at least under
certain circumstances. For example, even in states that prohibit lawyers from looking at
metadata, lawyers are permitted to do so with the opponent’s permission. The Commission’s
proposal recognizes that, when reviewing metadata with permission (or otherwise), a lawyer
might discover particular metadata that the lawyer knows the sending lawyer did not intend to
include. The Commission’s proposed amendments are designed to ensure that, under these
circumstances, Rule 4.4(b)’s notification requirement is triggered.
The Commission is also proposing to define the phrase “inadvertently sent.” The phrase
is ambiguous and potentially misleading, because (for example) it could be read to exclude
information that is intentionally sent, but to the wrong person. To ensure that the purpose of the
Rule is clear, the Commission proposes to add the following sentence: “A document or
electronically stored information is inadvertently sent when it is accidentally transmitted to an
unintended recipient, such as when an email or letter is misaddressed or when a document or
electronically stored information is accidentally included in discovery.”
VI. Conclusion
Technology can increase the quality of legal services, reduce the cost of legal services to
existing clients, and enable lawyers to represent clients who might not otherwise have been able
to afford those services. Lawyers, however, need to understand that technology can pose certain
risks to clients’ confidential information and that reasonable safeguards are ethically required.
The Commission’s proposals are designed to help lawyers understand these risks so that they can
take appropriate and reasonable measures when taking advantage of technology’s many benefits.
The Commission respectfully requests that the House of Delegates adopt the proposed
amendments set forth in the accompanying Resolutions.
6
Page 65 of 85
AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 10-457
Lawyer Websites
August 5, 2010
Websites have become a common means by which lawyers communicate with the public. Lawyers must not include
misleading information on websites, must be mindful of the expectations created by the website, and must carefully
manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer
relationship under Rule 1.18. Lawyers who respond to website-initiated inquiries about legal services should
consider the possibility that Rule 1.18 may apply. 1
I. Introduction
Many lawyers and law firms have established websites as a means of communicating with the public. A
lawyer website can provide to anyone with Internet access a wide array of information about the law, legal
institutions, and the value of legal services. Websites also offer lawyers a twenty-four hour marketing tool by
calling attention to the particular qualifications of a lawyer or a law firm, explaining the scope of the legal services
they provide and describing their clientele, and adding an electronic link to contact an individual lawyer.
The obvious benefit of this information can diminish or disappear if the website visitor misunderstands or
is misled by website information and features. A website visitor might rely on general legal information to answer a
personal legal question. Another might assume that a website’s provision of direct electronic contact to a lawyer
implies that the lawyer agrees to preserve the confidentiality of information disclosed by website visitors.
For lawyers, website marketing can give rise to the problem of unanticipated reliance or unexpected
inquiries or information from website visitors seeking legal advice. This opinion addresses some of the ethical
obligations that lawyers should address in considering the content and features of their websites. 2
II. Website Content
A. Information about Lawyers, their Law Firm, or their Clients
Lawyer websites may provide biographical information about lawyers, including educational background,
experience, area of practice, and contact information (telephone, facsimile and e-mail address). A website also may
add information about the law firm, such as its history, experience, and areas of practice, including general
descriptions about prior engagements. More specific information about a lawyer or law firm’s former or current
clients, including clients’ identities, matters handled, or results obtained also might be included.
Any of this information constitutes a “communication about the lawyer or the lawyer’s services,” and is
therefore subject to the requirements of Model Rule 7.1 3 as well as the prohibitions against false and misleading
statements in Rules 8.4(c) (generally) and 4.1(a) (when representing clients). Together, these rules prohibit false,
fraudulent or misleading statements of law or fact. Thus, no website communication may be false or misleading, or
may omit facts such that the resulting statement is materially misleading. Rules 5.1 and 5.3 extend this obligation to
managerial lawyers in law firms by obligating them to make reasonable efforts to ensure the firm has in place
measures giving reasonable assurance that all firm lawyers and nonlawyer assistants will comply with the rules of
professional conduct.
1
This opinion is based on the ABA Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2010. The
laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are controlling.
2
We do not deal here with website content generated by governmental lawyers or offices or by non-profit law advocacy firms or organizations.
See, e.g., In re Primus, 436 U.S. 412 (1978) (discussing how solicitation of prospective litigants by nonprofit organizations that engage in
litigation as form of political expression and political association constitutes expressive and associational conduct entitled to First Amendment
protection, which government may regulate only narrowly).
3
See, e.g., Arizona State Bar Op. 97-04 (1997), available at http://www.myazbar.org/Ethics/opinionview.cfm?id=480; California Standing
Committee on Prof'l Resp. and Conduct Formal Op. 2001-155, 2001 WL 34029609 (2001); Hawaii Sup. Ct. Disc. Bd. Formal Op. 41 (2001),
available at http://www.odchawaii.com/FORMAL_WRITTEN_OPINIONS.html; South Carolina Bar Eth. Advisory Committee Op. 04-06, 2004
WL 1520110 *1 (2004); Vermont Advisory Eth. Op. 2000-04, available at
http://www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/aeopinions/Advisory%20Ethics%20Opinions/Advertising/advertising.
htm. Many state and local ethics opinions are published online can be accessed through the ABA Center for Professional Responsibility website
at http://www.abanet.org/cpr/links.html.
Page 66 of 85
10-457 Formal Opinion
2
As applied to lawyer websites, these rules allow a lawyer to include accurate information that is not
misleading about the lawyer and the lawyer’s law firm, including contact information and information about the law
practice. 4 To avoid misleading readers, this information should be updated on a regular basis. 5 Specific
information that identifies current or former clients or the scope of their matters also may be disclosed, as long as the
clients or former clients give informed consent 6 as required by Rules 1.6 (current clients) and 1.9 (former clients). 7
Website disclosure of client identifying information is not normally impliedly authorized because the disclosure is
not being made to carry out the representation of a client, but to promote the lawyer or the law firm. 8
B. Information about the Law
Lawyers have long offered legal information to the public in a variety of ways, such as by writing books or
articles, giving talks to groups, or staffing legal hotlines. Lawyer websites also can assist the public in
understanding the law and in identifying when and how to obtain legal services.9 Legal information might include
general information about the law applicable to a lawyer’s area(s) of practice, as well as links to other websites,
blogs, or forums with related information. Information may be presented in narrative form, in a “FAQ” (frequently
asked questions) format, in a “Q & A” (question and answer) format, or in some other manner. 10
Legal information, like information about a lawyer or the lawyer’s services, must meet the requirements of
Rules 7.1, 8.4(c), and 4.1(a). Lawyers may offer accurate legal information that does not materially mislead
reasonable readers. 11 To avoid misleading readers, lawyers should make sure that legal information is accurate and
current, 12 and should include qualifying statements or disclaimers that “may preclude a finding that a statement is
likely to create unjustified expectations or otherwise mislead a prospective client.” 13 Although no exact line can be
drawn between legal information and legal advice, both the context and content of the information offered are
helpful in distinguishing between the two. 14
4
See, e.g., North Carolina State Bar Formal Eth. Op. 2009-6 (2009) (firm may provide case summaries on website, including accurate
information about verdicts and settlements, as long as it adds specific information about factual and legal circumstances of cases ((complexity,
whether liability or damages were contested, whether opposing party was represented by counsel, firm’s success in collecting judgment)) in
conjunction with appropriate disclaimer to preclude misleading prospective clients).
5
See, e.g., Missouri Bar Inf. Advisory Op. 20060005 (2006) (firm must remove lawyer’s biographical information within reasonable time after
lawyer leaves firm).
6
See, e.g., Ohio Advisory Op. 2000-6, 2000 WL 1872572 *5 (2000) (law firm may list client’s name on firm website with client’s informed
consent). See also New York Rule of Professional Conduct 7.1(b) (2) (2009) (lawyer may advertise name of regularly represented client,
provided that client has given prior written consent).
7
These rules apply to “all information relating to the representation, whatever its source” including publicly available information. Model Rule
1.6 cmt. 3. The consent can be oral or written. Rules 1.6 and 1.9(c) require informed consent, but do not require a written confirmation.
8
See ABA Committee on Eth. and Prof’l Responsibility, Formal Op. 09-455 (2009) (Disclosure of Conflicts Information When Lawyers Move
Between Law Firms) (absent demonstrable benefit to client’s representation, disclosure of client identifying information, including client’s name
and nature of matter handled, is not impliedly authorized under Rule 1.6(a)).
9
Model Rule 7.2 Comment [1] acknowledges that the “public’s need to know about legal services can be fulfilled in part through advertising,” a
need that may be “particularly acute” in the case of persons who have not made extensive use of, or fear they may not be able to pay for, legal
services.
10
See, e.g., Vermont Advisory Eth. Op. 2000-04, supra note 3 (lawyer may use “frequently asked questions” format as long as information is
current, accurate, and includes clear statement that it does not constitute legal advice and readers should not rely on it to solve individual
problem).
11
Rule 7.1 Comment [2] provides that a “truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable
person to formulate a specific conclusion ... for which there is no reasonable factual foundation.”
12
ABA Law Practice Management Section, Best Practice Guidelines for Legal Information Web Site Providers 1 (Feb. 2003), available at
http://meetings.abanet.org/webupload/commupload/EP024500/relatedresources/best_practice_guidelines.pdf
(website providing legal information should provide full and accurate information about identity and contact details of provider on each page of
website, as well as dates on which substantive content was last reviewed).
13
Model Rule 7.1 cmt. 3. See, e.g., ABA Law Practice Management Section, Best Practice Guidelines, supra note 12 at 2 (website providers
should avoid misleading users about jurisdiction to which site’s content relates, and if clearly state-specific, the jurisdiction in which the law
applies should be identified).
14
See, e.g., Arizona State Bar Op. 97-04, supra note 3 (because of inability to screen for conflicts of interest and possibility of disclosing
confidential information, lawyers should not answer specific legal questions posed by laypersons in Internet chat rooms unless question presented
is of general nature and advice given is not fact-specific); California Standing Committee on Prof'l Resp. and Conduct Formal Op. 2003-164,
2003 WL 23146203 (2003) (legal advice includes making recommendations about specific course of action to follow; public context of radio
call-in show that includes warnings about information not being substitute for individualized legal advice makes it unlikely lawyers have agreed
to act as caller’s lawyer); South Carolina Bar Eth. Advisory Committee Op. 94-27 *2 (1995), 1995 WL 934127 (lawyer may maintain electronic
presence for purpose of discussing legal topics, but must obtain sufficient information to make conflicts check before offering legal advice); Utah
Eth. Op. 95-01 (1995), 1995 WL 49472 *1 (“how to” booklet on legal subject matter does not constitute practice of law).
Page 67 of 85
10-457 Formal Opinion
3
With respect to context, lawyers who speak to groups generally have been characterized as offering only
general legal information. With respect to content, lawyers who answer fact-specific legal questions may be
characterized as offering personal legal advice, especially if the lawyer is responding to a question that can
reasonably be understood to refer to the questioner’s individual circumstances. However, a lawyer who poses and
answers a hypothetical question usually will not be characterized as offering legal advice. To avoid
misunderstanding, our previous opinions have recommended that lawyers who provide general legal information
include statements that characterize the information as general in nature and caution that it should not be understood
as a substitute for personal legal advice. 15
Such a warning is especially useful for website visitors who may be inexperienced in using legal services,
and may believe that they can rely on general legal information to solve their specific problem. 16 It would be
prudent to avoid any misunderstanding by warning visitors that the legal information provided is general and should
not be relied on as legal advice, and by explaining that legal advice cannot be given without full consideration of all
relevant information relating to the visitor’s individual situation.
C. Website Visitor Inquiries
Inquiries from a website visitor about legal advice or representation may raise an issue concerning the
application of Rule 1.18 (Duties to Prospective Clients). 17 Rule 1.18 protects the confidentiality of prospective
client communications. It also recognizes several ways that lawyers may limit subsequent disqualification based on
these prospective client disclosures when they decide not to undertake a matter. 18
Rule 1.18(a) addresses whether the inquirer has become a “prospective client,” defined as “a person who
discusses with a lawyer the possibility of forming a client-lawyer relationship.”
15
ABA Inf. Op. 85-1512 (1985) (Establishment of Private Multistate Lawyer Referral Service by Nonprofit Religious Organization), in
FORMAL AND INFORMAL ETHICS OPINIONS: FORMAL OPINIONS
1983-1998, at 550, 551 (ABA 2000) (not unethical to prepare articles of general legal information for lay public, but may be prudent to include
statement that information furnished is only general and not substitute for personalized legal advice); ABA Inf. Op. 85-1510 (1985)
(Establishment of Multistate Private Lawyer Referral Service for Benefit of Subscribers to Corporation's Services), in FORMAL AND
INFORMAL ETHICS OPINIONS: FORMAL OPINIONS 1983-1998, at 544, 545 (corporate counsel may author articles of general legal
information for corporations’ subscriber newsletter, but “good practice” to include a statement that information is only general in nature and not
substitute for personal legal advice).
16
See, e.g., ABA Law Practice Management Section, Best Practice Guidelines, supra note 12 at 3 (websites that provide legal information should
give users conspicuous notice that information does not constitute legal advice). Some state opinions also warn against providing specific or
particularized facts in a lawyer’s communication to avoid creating a client-lawyer relationship. See also District of Columbia Bar Eth. Op. 316
(2002), available at http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion316.cfm (online chat rooms and listserves); Maryland
State Bar Ass’n Committee on Eth. Op. 2007-18 (2008) (lawyer conducting domestic relations law seminars for lay public); New Jersey Advisory
Committee on Prof'l Eth. Op. 712 (2008) (Attorney-Staffed Legal Hotline For Members of Nonprofit Trade Association), available at
http://lawlibrary.rutgers.edu/ethics/acpe/acp712_1.html (lawyer staffing telephone hotline); New Jersey Advisory Committee on Prof'l Eth. Op
671, 1993 WL 137685 (1993) (Activities and Obligations of Pro Bono Attorneys), (lawyer-volunteer at abused women shelter); New Mexico Bar
Op. 2001-1 (2001) (Application of Rules of Professional Conduct to Lawyer's Use of Listserve-type Message Boards and Communications)
(listserves);
Wisconsin
Prof'l
Eth.
Committee
Op.
E-95-5
(1995),
available
at
http://www.wisbar.org/AM/Template.cfm?Section=Legal_Research&Template=/CustomSource/Search/Search.cfm&output=xml_no_dtd&proxy
stylesheet=wisbar5&client=wisbar5&filter=1&start=0&Site=SBW&q=%22formal+opinion%22+E%2D95%2D5&submit=ethics
(lawyervolunteer at organization that provides information about landlord-tenant law). The Model Rules defer to “principles of substantive law external
to these Rules [to] determine when a client-lawyer relationship exists.” Scope cmt. 17.
17
See, e.g., Arizona State Bar Op. 02-04 (2002), available at http://www.myazbar.org/Ethics/opinionview.cfm?id=288 (lawyer does not owe duty
of confidentiality to individuals who unilaterally e-mail inquiries to lawyer when e-mail is unsolicited); California Standing Committee on Prof'l
Resp. and Conduct Formal Op. 2001-155, supra note 3 (lawyer may avoid incurring duty of confidentiality to persons who seek legal services by
visiting lawyer’s website and disclose confidential information only if site contains clear disclaimer); Iowa Bar Ass'n Eth. Op. 07-02 (2007),
available at
http://www.iowabar.org/ethics.nsf/e61beed77a215f6686256497004ce492/cb0a70672d69d8c1862573380013fb9d?OpenDocument (message that
encourages detailed response about case could in some situations be considered bilateral); New Hampshire Bar Ass'n Eth. Committee Op. 20092010/1(2009), available at
http://www.nhbar.org/legal-links/ethics1.asp (when law firm’s website invites public to send e-mail to one of firm’s lawyers, it is opening itself to
potential obligations to prospective clients); Ass'n of the Bar of the City of New York, Formal Op. 2001-1 (2001) (Obligations Of Law Firm
Receiving Unsolicited E-Mail Communications From Prospective Client ), available at http://www.abcny.org/Ethics/eth2001-01.html (where
firm website does not adequately warn that information transmitted will not be treated as confidential, information should be held in confidence
by lawyer receiving communication and not disclosed to or used for benefit of another client even though lawyer declines to represent potential
client); New Jersey Advisory Committee on Prof'l Eth. Op. 695, 2004 WL 833032 (2004) (firm has duty to keep information received from
prospective
client
confidential);
San
Diego
County
Bar
Ass'n
Eth.
Op.
2006-1
(2006),
available
at
http://www.sdcba.org/index.cfm?Pg=ethicsopinion06-1 (private information received from non-client via unsolicited e-mail is not required to be
held as confidential if lawyer has not had opportunity to warn or stop flow of information at or before the communication is delivered).
18
Lawyers do not normally owe confidentiality obligations to persons who are not clients (protected by Rule 1.6), former clients (Rule 1.9), or
prospective clients (Rule 1.18).
Page 68 of 85
10-457 Formal Opinion
4
To “discuss,” meaning to talk about, generally contemplates a two-way communication, which necessarily must
begin with an initial communication. 19 Rule 1.18 implicitly recognizes that this initial communication can come
either from a lawyer or a person who wishes to become a prospective client.
Rule 1.18 Comment [2] also recognizes that not all initial communications from persons who wish to be
prospective clients necessarily result in a “discussion” within the meaning of the rule: “a person who communicates
information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, is not a prospective client.”
For example, if a lawyer website specifically requests or invites submission of information concerning the
possibility of forming a client-lawyer relationship with respect to a matter, a discussion, as that term is used in Rule
1.18, will result when a website visitor submits the requested information. 20 If a website visitor submits information
to a site that does not specifically request or invite this, the lawyer’s response to that submission will determine
whether a discussion under Rule 1.18 has occurred.
A telephone, mail or e-mail exchange between an individual seeking legal services and a lawyer is
analogous. 21 In these contexts, the lawyer takes part in a bilateral discussion about the possibility of forming a
client-lawyer relationship and has the opportunity to limit or encourage the flow of information. For example, the
lawyer may ask for additional details or may caution against providing any personal or sensitive information until a
conflicts check can be completed.
Lawyers have a similar ability on their websites to control features and content so as to invite, encourage,
limit, or discourage the flow of information to and from website visitors. 22 A particular website might facilitate a
very direct and almost immediate bilateral communication in response to marketing information about a specific
lawyer. It might, for example, specifically encourage a website visitor to submit a personal inquiry about a proposed
representation on a conveniently-provided website electronic form which, when responded to, begins a “discussion”
about a proposed representation and, absent any cautionary language, invites submission of confidential
information. 23 Another website might describe the work of the law firm and each of its lawyers, list only contact
information such as a telephone number, e-mail or street address, or provide a website e-mail link to a lawyer.
Providing such information alone does not create a reasonable expectation that the lawyer is willing to discuss a
specific client-lawyer relationship. 24 A lawyer’s response to an inquiry submitted by a visitor who uses this contact
information may, however, begin a “discussion” within the meaning of Rule 1.18.
In between these two examples, a variety of website content and features might indicate that a lawyer has
agreed to discuss a possible client-lawyer relationship. A former client’s website communication to a lawyer about
a new matter must be analyzed in light of their previous relationship, which may have given rise to a reasonable
expectation of confidentiality. 25 But a person who knows that the lawyer already declined a particular
representation or is already representing an adverse party can neither reasonably expect confidentiality, nor
reasonably believe that
19
For example, in ABA Committee on Eth. and Prof’l Responsibility, Formal Op. 90-358 (1990) (Protection of Information Imparted by
Prospective Client), this Committee considered the obligations of a lawyer who engaged in such a “discussion” in the context of a face-to-face
meeting.
20
Rule 1.18 cmt. 1.
21
See, e.g., Virginia Legal Eth. Op. 1842 (2008), available at http://www.vacle.org/opinions/1842.htm (absent voicemail message that asks for
detailed information, providing phone number and voicemail is an invitation only to contact lawyer, not to submit confidential information); Iowa
State Bar Ass'n Eth. Op. 07-02 ("Communication from and with Potential Clients), available at
http://www.iowabar.org/ethics.nsf/e61beed77a215f6686256497004ce492/cb0a70672d69d8c1862573380013fb9d?OpenDocument
(telephone
voicemail message that simply asks for contact details does not give rise to bilateral communication, but message that encourages caller to leave
detailed messages about their case could be considered bilateral).
22
See, e.g., Arizona State Bar Op. 02-04 (2002), available at http://www.myazbar.org/Ethics/opinionview.cfm?id=288 (lawyers who maintain
websites with e-mail links should include disclaimers to clarify whether e-mail communications from prospective clients will be treated as
confidential); Massachusetts Bar Ass'n Op. 07-01 (2007), available at http://www.massbar.org/publications/ethics-opinions/20002009/2007/opinion-07-01 (lawyer who receives unsolicited information from prospective client through e-mail link on law firm website without
effective disclaimer must hold information confidential because law firm has opportunity to set conditions on flow of information); South Dakota
Bar Eth. Op. 2002-2 (2002) (lawyer’s website that invites viewers to send e-mail through jump site creates expectation of confidentiality).
23
See, e.g., Iowa State Bar Ass'n Eth. Op. 07-02, supra note 21 (web page inviting specific questions constitutes bilateral communication with
expectation of confidentiality) and Virginia Legal Eth. Op. 1842 supra note 21 (website that specifically invites visitor to submit information in
exchange for evaluation invites formation of client-lawyer relationship).
24
E-mails received from unknown persons who send them apart from the lawyer’s website may even more easily be viewed as unsolicited. See,
e.g., Arizona State Bar Op. 02-04, supra note 22 (e-mail to multiple lawyers asking for representation); Iowa State Bar Ass'n Eth. Op. 07-02,
supra note 21 (website that gives contact information does not without more indicate that lawyer requested or consented to sending of
confidential information); San Diego County Bar Assn. Op. 2006-1, available at http://www.sdcba.org/index.cfm?Pg=ethicsopinion06-1 (inquirer
found lawyer’s e-mail address on state bar membership records website accessible to the public).
25
See, e.g., Iowa State Bar Ass'n Committee Eth. Op. 07-02, supra note 22 (lack of prior relationship with person sending unsolicited e-mail
requesting representation was one factor in determining whether communicator’s disclosures were unilateral and whether expectation of
Page 69 of 85
10-457 Formal Opinion
5
the lawyer wishes to discuss a client-lawyer relationship. Similarly, a person who purports to be a prospective client
and who communicates with a number of lawyers with the intent to prevent other parties from retaining them in the
same matter should have no reasonable expectation of confidentiality or that the lawyer would refrain from an
adverse representation. 26
In other circumstances, it may be difficult to predict when the overall message of a given website
communicates a willingness by a lawyer to discuss a particular prospective client-lawyer relationship. Imprecision
in a website message and failure to include a clarifying disclaimer may result in a website visitor reasonably viewing
the website communication itself as the first step in a discussion. 27 Lawyers are therefore well-advised to consider
that a website-generated inquiry may have come from a prospective client, and should pay special attention to
including the appropriate warnings mentioned in the next section.
If a discussion with a prospective client has occurred, Rule 1.18(b) prohibits use or disclosure of
information learned during such a discussion absent the prospective client’s informed consent. 28 When the
discussion reveals a conflict of interest, the lawyer should decline the representation, 29 and cannot disclose the
information received without the informed consent of the prospective client. 30 For various reasons, including the
need for a conflicts check, the lawyer may have tried to limit the initial discussion and may have clearly expressed
those limitations to the prospective client. If this has been done, any information given to the lawyer that exceeds
those express limitations generally would not be protected under Rule 1.18(b).
Rule 1.18(c) disqualifies lawyers and their law firms who have received information that “could be
significantly harmful” to the prospective client from representing others with adverse interests in the same or
substantially related matters. 31 For example, if a prospective client previously had disclosed only an intention to
bring a particular lawsuit and has now retained a different lawyer to initiate the same suit, it is difficult to imagine
any significant harm that could result from the law firm proceeding with the defense of the same matter. 32 On the
other hand, absent an appropriate warning, the prospective client’s prior disclosure of more extensive facts about the
matter may well be disqualifying.
Rule 1.18(d) creates two exceptions that allow subsequent adverse representation even if the prospective
client disclosed information that was significantly harmful: (1) informed consent confirmed in writing from both the
affected and the prospective client, or (2) reasonable measures to limit the disqualifying information, combined with
timely screening of the disqualified lawyer from the subsequent adverse matter. Rule 1.18(d) (2) specifically would
allow the law firm (but not the contacted lawyer) to "undertake or continue" the representation of someone with
adverse interests without receiving the informed consent of the prospective client if the lawyer who initially received
the information took reasonable precautions to limit the prospective client’s initial disclosures and was timely
screened from further involvement in the matter as required by Rule 1.0(k).
III. Warnings or Cautionary Statements Intended to Limit, Condition, or Disclaim a Lawyer’s Obligations to
Website Visitors
Warnings or cautionary statements on a lawyer’s website can be designed to and may effectively limit,
condition, or disclaim a lawyer’s obligation to a website reader. Such warnings or statements may be written so as
confidentiality was reasonable); Oregon Eth. Op. 2005-146, 2005 WL 5679570 *1 (2005) (lawyer who sends periodic reminders to former clients
risks giving recipients reasonable belief they are still current clients).
26
See, e.g., Virginia Legal Eth. Op. 1794 (2004), available at http://www.vacle.org/opinions/1794.htm (person who meets with lawyer for
primary purpose of precluding others from obtaining legal representation does not have reasonable expectation of confidentiality); Ass’n of the
Bar of the City of New York Committee on Prof'l and Jud. Eth. Formal Op. 2001-1 (2001), available at
http://www.abcny.org/Ethics/eth2001.html (“taint shoppers,” who interview lawyers or law firms for purpose of disqualifying them from future
adverse representation, have no good faith expectation of confidentiality).
27
See e.g., Massachusetts Bar Ass'n Op. 07-01, supra note 22 (in absence of effective disclaimer, prospective client visiting law firm website that
markets background and qualifications of each lawyer in attractive light, stresses lawyer’s skill at solving clients’ practical problems, and
provides e-mail link for immediate communication with that lawyer might reasonably conclude that firm and its individual lawyers have
implicitly “agreed to consider” whether to form client-lawyer relationship).
28
Rule 1.18(b) allows disclosure or use if permitted by Rule 1.9. Rule 1.9(c) (2) and its Comment [7] in turn link disclosure to Rule 1.6, the
general confidentiality rule, which requires client informed consent to disclosure.
29
Rule 1.18 cmt. 4.
30
Rule 1.18 cmt. 3.
31
See also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15 (2) (2000).
32
Rule 1.18 cmt. 5 also allows lawyers to condition an initial conversation on the prospective client’s informed consent to subsequent adverse
representation in the same matter or subsequent use of any confidential information provided.
Page 70 of 85
10-457 Formal Opinion
6
to avoid a misunderstanding by the website visitor that (1) a client-lawyer relationship has been created; 33 (2) the
visitor’s information will be kept confidential; 34 (3) legal advice has been given; 35 or (4) the lawyer will be
prevented from representing an adverse party. 36
Limitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably
understandable, properly placed, and not misleading. This requires a clear warning in a readable format whose
meaning can be understood by a reasonable person. 37 If the website uses a particular language, any waiver,
disclaimer, limitation, or condition must be in the same language. The appropriate information should be
conspicuously placed to assure that the reader is likely to see it before proceeding.38
Finally, a limitation, condition, waiver, or disclaimer may be undercut if the lawyer acts or communicates
contrary to its warning.
33
See, e.g., New Mexico Bar Op. 2001-1 (2001), available at http://www.nmbar.org/legalresearch/ethicsadvisoryopinions.html (appropriate
disclaimers of attorney-client relationship should accompany any response to listserve message board, but any response that would suggest to
reasonable person that, despite disclaimer, relationship is being or has been established, would negate disclaimer); North Carolina State Bar
Formal Eth. Op. 2000-3, 2000 WL 33300702 *2 (2000) (Responding to Inquiries Posted on a Message Board on the Web) (lawyers who do not
want to create client-lawyer relationships on law firm message board should use specific disclaimers on any communications with inquirers, but
substantive law will determine whether client-lawyer relationship is created); Ass’n of the Bar of the City of New York Committee on Prof'l and
Jud. Eth. Formal Op. 1998-2 (1998), available at http://www.abcny.org/Ethics/eth1998-2.htm (disclaimer that “if specific legal advice is sought,
we will indicate that this requires establishment of an attorney-client relationship which cannot be carried out through the use of a web page” may
not necessarily serve to shield law firm from claim that attorney-client relationship was established by specific on-line communications); Utah
State Bar Eth. Advisory Op. Committee Op. 96-12, 1997 WL 45137 *1 (1997) (“if legal advice is sought from an attorney, if the advice sought is
pertinent to the attorney’s profession, and if the attorney gives the advice for which fees will be charged, an attorney-client relationship is created
that cannot be disclaimed by the attorney giving the advice”); Vermont Bar Ass'n Advisory Eth. Op. 2000-04 (2000), supra note 3 (despite
website caveat and disclaimers, nonlawyer may still rely on information on website or lawyer’s responses; disclaimer cannot preclude possibility
of establishing client-lawyer relationship in an individual case).
34
The Committee does not opine whether a confidentiality waiver might affect the attorney-client privilege. See, e.g., Barton v. U.S. Dist. Ct. for
the Cent. Dist. of Cal., 410 F. 3d 1104, 1111-12 (9th Cir. 2005) (checking “yes” box on law firm website that acknowledged providing
information in answer to questionnaire “does not constitute a request for legal advice and I am not forming an attorney-client relationship by
submitting this information” did not waive attorney-client privilege because confidentiality was not mentioned in attempted disclaimer and
questionnaires were nevertheless submitted in course of seeking attorney-client relationship in potential class action). Cf. Schiller v. The City of
New York, 245 F.R.D. 112, 117-18 (S.D.N.Y. 2007) (although privilege may protect pre-engagement communications from prospective clients,
it does not apply to person who completed questionnaires soliciting information from N.Y. Civil Liberties Union to allow it to “effectively
advocate for change”). See also David Hricik, To Whom it May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited
E-Mail from Prospective Clients, 16 ABA PROFESSIONAL LAWYER 1, 5 (2005) (agreement that waives all confidentiality tries to do too much and
might destroy the ability of prospective client who eventually becomes firm client to claim privilege).
35
See note 15 supra.
36
Rule 1.18 cmt. 5.
37
See, e.g., California Bar Committee on Prof'l Resp. Op. 2005-168, 2005 WL 3068090 *4 (2005) (finding disclaimer stating that “confidential
relationship” would not be formed was not enough to waive confidentiality, because it confused not forming client-lawyer relationship with
agreeing to keep communications confidential).
38
See,
e.g.,
District
of
Columbia
Bar
Eth.
Op.
302
(2000),
available
at
http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion302.cfm (lawyers may want to use “click through” pages that
automatically direct the reader to another webpage containing disclaimers to ensure that visitors are not misled and other devices such as
confirmatory messages that clarify nature of relationship); Virginia Legal Eth. Op. 1842, supra note 21 (approving of prominent “click through”
disclaimers that require readers to assent to terms of disclaimer before submitting information). Courts have refused to uphold disclaimers or
licensing agreements that appeared on separate pages and did not require a reader’s affirmative consent to their terms because they did not
provide reasonable notice). See, e.g., Sprecht v. Netscape Communications Corp., 306 F.3d 17, 31-32 (2d Cir. 2002). On the other hand, courts
have upheld website restrictions that provided actual knowledge by presenting the information and requiring an affirmative action (a click
through or “clickwrap” agreement) before gaining access to the website content. See, e.g., Register.com v. Verio, 356 F.3d 393, 401-02 (2d Cir.
2004).
_____________________________________________________________________________________________________________________
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312)988-5300
CHAIR: Robert Mundheim, New York, NY ■ Robert A. Creamer, Evanston, IL ■ Terrence M. Franklin, Los Angeles,
CA ■ Paula J. Frederick, Atlanta, GA ■ Bruce A. Green, New York, NY ■ James M. McCauley, Richmond, VA ■
Susan R. Martyn, Toledo, OH ■ Mary Robinson, Downers Grove, IL ■ Philip H. Schaeffer, New York, NY ■
E. Norman Veasey, Wilmington, DE
CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman, Ethics Counsel; Eileen B. Libby,
Associate Ethics Counsel ©2010 by the American Bar Association. All rights reserved.
Page 71 of 85
2011 Formal Ethics Opinion 10
October 21, 2011
Lawyer Advertising on Deal of the Day or Group Coupon Website
Opinion rules that a lawyer may advertise on a website that offers daily discounts to
consumers where the website company’s compensation is a percentage of the amount
paid to the lawyer if certain disclosures are made and certain conditions are satisfied.
Inquiry:
Lawyer would like to advertise on a “deal of the day” or “group coupon” website. To
utilize such a website, a consumer registers his email address and city of residence on the
website. The website company then emails local "daily deals" or coupons for discounts
on services to registered consumers. The daily deals are usually for services such as spa
treatments, tourist attractions, restaurants, photography, house cleaning, etc. The daily
deals can represent a significant reduction off the regular price of the offered service.
Consumers who wish to participate in the “deal of the day” purchase the deal online
using a credit card that is billed.
The website company negotiates the discounts with businesses on a case-by-case basis;
however, the company’s fee is always a percentage of each “daily deal” or coupon sold.
Therefore, the revenue received by the business offering the daily deal is reduced by the
percentage of the revenue paid to the website company.
May a lawyer advertise on a group coupon website and offer a “daily deal” to users of the
website subject to the website company’s fees without violating the Rules of Professional
Conduct?
Opinion:
Yes. Although the website company’s fee is deducted from the amount paid by a
purchaser for the anticipated legal service, it is paid regardless of whether the purchaser
actually claims the discounted service and the lawyer earns the fee by providing the legal
services to the purchaser. Therefore, the fee retained by the website company is the cost
of advertising on the website and does not violate Rule 5.4(a) which prohibits, with a few
exceptions, the sharing of legal fees with nonlawyers. The purpose for the fee-splitting
prohibition is not confounded by this arrangement. As noted in Comment [1] to the rule,
the traditional limitations on sharing fees prevent interference in the independent
professional judgment of a lawyer by a nonlawyer. There is no interaction between the
website company and the lawyer relative to the legal representation of purchasers at any
time after the fee is paid on-line other than the transfer of the proceeds of the “daily deal”
to the lawyer. Rule 7.2(b)(1) allows a lawyer to pay the reasonable cost of
advertisements. As long as the percentage charged against the revenues generated is
reasonable compensation for the advertising service, a lawyer may participate. Cf. 2010
FEO 4 (permitting participation in a barter exchange program in which members pay a
cash transaction fee of ten percent on the gross value of each purchase of goods or
services). There are, however, professional responsibilities that are impacted by this type
of advertising.
First, a lawyer may not engage in misleading advertising. Rule 7.1. Therefore, the
advertised discount may not be illusory: the lawyer must have an established, standard
Page 72 of 85
fee for the service that is being offered at a discount. Moreover, the lawyer’s
advertisement on the website must include certain disclosures. Clients should not make
decisions about legal representation in a hasty manner. The advertisement must explain
that the decision to hire a lawyer is an important one that should be considered carefully
and made only after investigation into the lawyer’s credentials. In addition, the
advertisement must state that a conflict of interest or a determination by the lawyer that
the legal service being offered is not appropriate for a particular purchaser may prevent
the lawyer from providing the service and, if so, the purchaser’s money will be refunded
(see below for explanation of the duty to refund).
Second, a lawyer must deposit entrusted funds in a trust account. Rule 1.15-2(b). The
payments received by the lawyer from the website company are advance payments1
of legal fees that must be deposited in the lawyer’s trust account and may not be paid to
the lawyer or transferred to the law firm operating account until earned by the provision
of legal services.
Third, a professional relationship with a purchaser of the discounted legal service is
established once the payment is made and this relationship must be honored. The lawyer
has offered his services on condition that there is no conflict of interest and the service is
appropriate for the purchaser, and the purchaser has accepted the offer. At a minimum,
the purchaser must be considered a prospective client entitled to the protections afforded
to prospective clients under Rule 1.18.
Fourth, a lawyer may not retain a clearly excessive fee. Rule 1.5(a). If a prospective
client fails to claim the discounted legal service within the designated time (before the
“expiration date”), one might consider the advance payment forfeited. Even if it is
assumed that this is a risk that is generally known to consumers, however, it does not
justify the receipt of a windfall by the lawyer. As a fiduciary, a lawyer places the interests
of his clients above his own and may not accept a legal fee for doing nothing. Such a fee
is inherently excessive. Therefore, if a prospective client does not claim the discounted
service within the designated time, the lawyer must refund the advance payment on
deposit in the trust account for the prospective client or, if the prospective client still
desires the legal service, the lawyer may charge his actual rate at the time the service is
provided but must give the prospective client credit for the advance payment on deposit
in the trust account.
Last, a lawyer has a duty of competent representation pursuant to Rule 1.1. The lawyer
must consult with each prospective client to determine what service the prospective client
actually requires. If competent representation requires the lawyer to expend more time
than anticipated to satisfy the advertised service, the lawyer must do so without additional
charge. Similarly, if upon consulting with a prospective client the lawyer determines that
the prospective client does not need the legal service or that a conflict of interest prohibits
the representation, the lawyer must refund the prospective client’s entire advance
payment, including the amount retained by the website company, to make the prospective
client whole.
Endnote
1. In light of the many uncertainties of a legal representation arranged in the manner proposed, a lawyer
may not condition the offer of discounted services upon the purchaser’s agreement that the money paid
will be a flat fee or a minimum fee that is earned by the lawyer upon payment. See 2008 FEO 10.
Page 73 of 85
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
HORACE F. HUNTER,
Plaintiff
Civil Action No. 3:11-CV-216-JAG
VIRGINIA STATE BAR, et al9.
Defendants.
ORDER
This matter is before the Court on the Motion to Dismiss filed by Defendants Virginia
State Bar, Karen Gould, and Renu Brennan on April 18, 2011 (Dkt. No. 5) and the Motion for a
Temporary Injunction filed by Plaintiff Horace F. Hunter on April 12, 2011 (Dkt. No. 4). The
Court dispenses with oral argument because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not aid the decisional process.
For the reasons stated in the accompanying Memorandum Opinion, the Court GRANTS
the Defendants' Motion to Dismiss. Plaintiffs Motion for a Temporary Injunction is DENIED
as moot. The hearing on these motions scheduled for Monday, May 16, 2011 is CANCELED.
Plaintiff may appeal the decision of the Court. Should he wish to appeal, written notice
of appeal must be filed within sixty (60) days of the date of entry hereof. Failure to file a timely
notice of appeal may result in the loss of the right to appeal.
It is so ORDERED.
Let the Clerk send a copy of this Order to all counsel of record.
Page 74 of 85
/s/
John A. Gibney, Jwf
United States DistrictUge
Date: May 9. 2011
Richmond, VA
Page 75 of 85
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
HORACE F. HUNTER,
Plaintiff
Civil Action No. 3:11 -CV-216-JAG
VIRGINIA STATE BAR, et al.9
Defendants.
MEMORANDUM OPINION
This matter is before the Court on the motion to dismiss filed by Defendants Virginia
State Bar, Karen Gould ("Gould"), and Renu Brennan ("Brennan," collectively "Defendants").
In this case, the Virginia State Bar has filed an ethics complaint against Plaintiff Horace F.
Hunter ("Hunter") for failing to post a disclaimer on his law firm website. In his Complaint,
Hunter alleges that requiring the disclaimer infringes upon his First Amendment rights. Hunter
requests the Court to enjoin the pending disciplinary hearing before the Virginia State Bar as
well as grant him monetary damages. The defendants contend that they are immune from suit
and that the Younger doctrine counsels the Court to abstain from hearing the case. For the
reasons stated below, the Court GRANTS Defendants' motion to dismiss.
I. Standard of Review
Because this matter comes before the Court in a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the Court will apply the familiar standards in considering the
allegations in the Complaint. A motion to dismiss tests the sufficiency of a complaint; it does
Page 76 of 85
not resolve contested factual issues. Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992). In considering the motion, a court must accept all factual allegationsin the complaint
as true and must draw all reasonable inferences in favor of the plaintiff. See Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Warner v. Buck Creek Nursery, Inc., 149 F. Supp.
2d 246, 254-55 (W.D. Va. 2001). To survive a motion to dismiss, a complaint must contain
sufficient factual matter which, accepted as true, "state[s] a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S., 129 S. Ct. 1937 (2009) (quoting Bell Atl Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This plausibility standard requires a plaintiff to demonstrate more
than "a sheer possibility that a defendant has acted unlawfully." Id. It requires the plaintiff to
articulate facts that, when accepted as true, "show" that the plaintiff has stated a claim entitling
him to relief, that is, the "plausibilityof 'entitlement to relief."' Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 557). Thus,
the "[f]actual allegations must be enough to raise a right to relief above the speculative level,"
Twombly, 540 U.S. at 545, to one that is "plausible on its face," id. at 570, rather than merely
"conceivable." Id. Although the Court must accept as true all well-pleaded factual allegations,
the same is not true for legal conclusions. "Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
In considering such a motion, a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the plaintiff. Matkari, 1 F.3d at 1134; see
also Martin, 980 F.2d at 952.
II. Statement of Material Facts and Proceedings
Applying the standard discussed above, the Court has concluded that the following
narrative represents the material facts for purposes of resolving the motion to dismiss.
2
Page 77 of 85
Hunter filed a Complaint in this Court on April 5, 2011, alleging that a disciplinary action
pending before the Virginia State Bar unconstitutionally infringes upon his First Amendment
rights.
Hunter is an attorney licensed by the Virginia State Bar to practice law in the
Commonwealth ofVirginia. (Compl. t 6.) The Virginia State Bar is an administrative agency of
the Supreme Court of Virginia authorized under the laws of Virginia to regulate attorneys in the
practice of law. (Id. t 7.) Gould is the Bar's Executive Director/Chief Operating Officer. (Id. t
8.) Brennan is Assistant Bar Counsel of the Virginia State Bar; in her position, she prosecutes
disciplinary cases. (Id. t 9.) Hunter is suing Gould and Brennan in their official capacities. (Id.
tt8-9.)
Hunter is the president of the law firm Hunter & Lipton, PC. (Id. f 10.) Hunter &
Lipton, PC, maintains a website, a portion of which the plaintiff characterizes as a weblog (or
"blog") entitled This Week in Richmond Criminal Defense. (Id. til.) Many, but not all, of the
entries on This Week in Richmond Criminal Defense herald Hunter's courtroom successes and
identify him as the winning attorney. (Compl. Ex. A.)
On or about July 27, 2010, the Virginia State Bar notified Hunter that the blog did not
conform to the Rules of Professional Conduct and instructed him to place a disclaimer on the
blog. (Id. t 12.) The disclaimer would advise potential criminal defendants and clients that
results in their cases could vary, depending on the facts of each case. On or about August 5,
2010, Hunter responded to the Virginia State Bar, indicating that the blog was protected speech
under the First Amendment of the Constitution. (Id. t 13.) On September 10, 2010, Brennan
initiated disciplinary proceedings against Hunter, and on September 21, 2010, Hunter filed a
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formal response to the bar complaint.1 (Id. t 14.) The matter is scheduled for a disciplinary
hearing on June 10, 2011, before a District Committee of the Virginia State Bar. (Id. 115.)
Hunter intends to continue to publish articles on his blog. (Id. t 16.) He fears that the
Virginia State Bar will take disciplinary action that may include revocation of his license to
practice law in the Commonwealth of Virginia. (Id.)
Hunter maintains that the First Amendment protects his speech regarding the contents of
his blog. (Id. t 17.) He contends that the Virginia State Bar lacks the authority to coerce him
under threat of disciplinary action to add content to his blog in the form of a disclaimer. (Id. t
20.)
Hunter has filed suit under 42 U.S.C. § 1983. He seeks the following relief: (1) a
declaratory judgment that the disciplinary action initiated by Defendants is unconstitutional as
applied to Hunter as a violation of his First Amendment right to free speech; (2) a preliminary
and a permanent injunction prohibiting Defendants from proceeding with the disciplinary action
dealing with the blog; (3) compensatory damages of $25,000 or an amount proven at trial; (4)
punitive damages of $50,000; and (5) costs and attorney's fees.
Defendants have filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
III. Discussion
As explained below, the Court finds that the Virginia State Bar is protected by the
Eleventh Amendment; that Gould and Brennan may not be sued for money damages because
they have been sued in their official capacities; that Brennan, as Assistant Bar Counsel, is
1The complaint deals with matters other than the disclaimer. It alleges that Hunter has divulged
client confidences and has improperly implied that he is in a partnership. (Compl. Ex. F.) The
other charges are not at issue in this case.
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entitled to prosecutorial immunity; and that the Younger abstention doctrine applies to the instant
case. The Court will, therefore, dismiss this case.
A. The Virginia StateBar's Immunity Under theEleventh Amendment
The Eleventh Amendment prohibits individuals from bringing suit against states and state
agencies in federal court. See Bd. ofTrs. of Univ. ofAla. v. Garrett, 531 U.S. 356, 361 (2001)
("The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be
sued by private individuals in federal court." (citations omitted)); Regents ofthe Univ. ofCal. v.
Doe, 519 U.S. 425, 429 (1997) (stating that the Eleventh Amendment applies "not only to
actions in which a State is actually named as a defendant, but also certain actions against state
agents and state instrumentalities" (citations omitted)). Although it is frequently described as a
form of immunity, the protection of the Eleventh Amendment actually is a limit on federal court
jurisdiction over states and state entities. Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006);
Constantine v. Rectors, George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005). Although
Congress can abrogate states' Eleventh Amendment immunity, it has not done so for § 1983
cases. Demuren v. OldDominion University, 33 F. Supp. 2d 469, 474-75 (E.D. Va. 1999), affd,
188 F.3d 501 (4th Cir. 1999).2
Pursuant to the Virginia Code, the Virginia State Bar is an agency of the Supreme Court
of the Virginia. See Va. Code § 54.1-3910. Thus, the Court finds that the Virginia State Bar is
protected by the Eleventh Amendment.
B. Damages Claim as to Defendants Gouldand Brennan
2In his response to the motion to dismiss, Hunter analyzes the doctrine of qualified immunity but
does not address the Eleventh Amendment. Defendants have not yet asserted qualified immunity
in this case.
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Hunter has sued Gould and Brennan in their official capacities.
According to the
Supreme Court in Will v. Michigan Department ofState Police, 491 U.S. 58, 71 (1989), "[A] suit
against a state official in his or her official capacity is not a suit against the official but rather is a
suit against the official's office. As such, it is no different from a suit against the State itself
(internal citations omitted). The real party in interest, therefore, is the state for which the
officials are agents, the Commonwealth ofVirginia. See Kentucky v. Graham, 473 U.S. 159,166
(1985). Thus, since a state cannot be a defendant, plaintiffs may not recover damages against
state officials sued in their official capacities for claims asserted under 42 U.S.C. § 1983.
Nivens v. Gilchrist, 444 F.3d at 248-49 (holding that a state officer sued in his official capacity
was protected by the Eleventh Amendment).3
Accordingly, the Court finds that Hunter may not recover damages from Gould or
Brennan.
C Prosecutorial Immunity as to Brennan
Under both state and federal law, absolute immunity from civil liability attaches to
prosecutors for acts within the scope of their duties. According to the Virginia Supreme Court,
"In each case where a prosecutor is involved in the charging process, under Virginia law, that
action is intimately connected with the prosecutor's rule in judicial proceedings and the
prosecutor is entitled to absolute immunity from suit for such actions." Andrews v. Ring, 266
Va. 311, 321, 585 S.E.2d 780, 785 (2003). The same rule applies under federal law. Imbler v.
Pachtman, 424 U.S. 409, 422-29 (1976) (incorporating common law principle of prosecutorial
immunity).
3Hunter's response to the motion to dismiss does not address his entitlement to damages against
state officials sued in their official capacity.
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This Court applied Andrews in finding that counsel for the Virginia Board of Medicine
was entitled to absolute prosecutorial immunity in a lawsuit following the revocation of a
physician's medical license. See Vuyyuru v. Jadhav, No. 3:10-cv-173, 2011 U.S. Dist. LEXIS
42254, at *33-34 (E.D. Va. Apr. 18, 2011) ("The Virginia Supreme Court has never considered
whether prosecutorial immunity attaches in administrative proceedings. But neither has the court
given any indication that it rejects the rule . . . conferring immunity on a prosecutor arguing the
government's case in an administrative proceeding."). In Leach v. Virginia State Bar, 73 Va.
Cir. 362, 363 (Va. Cir. 2007), available at 2007 LEXIS 221, the Circuit Court for the City of
Richmond cited Andrews in finding that bar counsel was entitled to prosecutorial immunity.
Thus, consistent with the case law, the Court finds that Brennan, as Assistant Bar
Counsel of the Virginia State Bar, is entitled to absolute prosecutorial immunity for those actions
set forth in the Complaint.
D. Younger Counsels Abstention
Younger v. Harris, 401 U.S. 37 (1971), and the cases in its wake, set forth a strong policy
against federal court intervention in ongoing state judicial proceedings, absent extraordinary
circumstances. The Younger abstention doctrine originally developed in the criminal context.
The Supreme Court, however, has extended its use under the rationale that Younger abstention
applies to those "'state administrative proceedings in which important state interests are
vindicated, so long as in the course of those proceedings the federal plaintiff would have a full
and fair opportunity to litigate his constitutional claim.'" Va. Inst, of Autism v. Va. Dep't of
Educ, 537 F. Supp. 2d 817, 820 (E.D. Va. 2008) (quoting Ohio Civil Rights Comm'n v. Dayton
Christian Schs., Inc., 477 U.S. 619, (1986)). The Younger abstention doctrine recognizes that
4 In his response to the motion to dismiss, Hunter does not address the issue of prosecutorial
immunity.
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comity between state and federal governments requires "'a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union of separate state
governments, and a continuance of the belief that the National Government will fare best if the
States and their institutions are left free to perform their separate functions in their separate
ways.'" Middlesex County Ethics Comm. v. Garden State Bar Ass % 457 U.S. 423, 431 (1982)
(quoting Younger v. Harris, 401 U.S. 37, 44 (1971)).
Under the Younger doctrine, a federal court should abstain from hearing a case over
which it otherwise has jurisdiction if there is an ongoing state proceeding that implicates a
substantial state interest and the plaintiff will have an adequate opportunity to raise the federal
constitutional challenge during the state proceeding. See Moore v. City ofAsheville, N.C., 396
F.3d 385, 390 (4th Cir. 2005) (citations omitted); Va. Inst, ofAutism, 537 F. Supp. 2d at 820
(citations omitted).
Disciplinary proceedings are already underway in the instant matter. The bar complaint
was filed on September 10, 2010, Hunter responded on September 21, 2010, and the disciplinary
hearing is scheduled for June 10, 2011. This Court has stated that bar disciplinary proceedings
are judicial in nature. See Motley v. Va. State Bar, 403 F. Supp. 2d 468, 472 (E.D. Va. 2005);
see also Leach, 73 Va. Cir. at 363 (stating that Virginia State Bar disciplinary proceedings "are
judicial in nature"). Pursuant to the Virginia Code and the Rules of the Supreme Court of
Virginia, following a determination by the Virginia State Bar's District Committee of the hearing
on June 10, 2011, Hunter may appeal to a disciplinary board or three-judge panel. Hunter may
appeal of right the determination of the disciplinary board or three-judge panel to the Supreme
Court ofVirginia. He would then have the opportunity to petition the U.S. Supreme Court.
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States have a strong interest in regulating the practice of law. See, e.g., Middlesex, 457
U.S. at 434 ("States traditionally have exercised control over the professional conduct of
attorneys. The ultimate objective of such control is the protection of the public, the purification
of the bar and the prevention of a re-occurrence." (internal citations and internal quotation marks
omitted)). The Fourth Circuit has not confronted this precise issue, but other courts of appeals
have affirmed dismissal under Younger where an attorney filed suit in federal court seeking to
enjoin state disciplinary proceedings. See, e.g., Gillette v. N.D. Disciplinary Bd. Counsel, 610
F.3d 1045 (8th Cir. 2010); Am. Family Prepaid Legal Corp. v. Columbus Bar Ass'n, 498 F.3d
328 (6th Cir. 2007); Sekerez v. Supreme Court oflnd., 685 F.2d 202 (7th Cir. 1982).
Hunter will have the opportunity to raise his First Amendment challenges in the bar
disciplinary hearing. For example, in Motley v. Virginia State Bar, 260 Va. 243, 247, 536 S.E.2d
97, 99 (2000), the attorney had challenged a disciplinary rule as unconstitutionally vague before
the disciplinary board. In Anthony v. Virginia State Bar, 270 Va. 601, 621 S.E.2d 121 (2005),
the Virginia Supreme Court affirmed the public reprimand of an attorney who asserted First
Amendment rights to make certain statements.
Finally, allowing Hunter to utilize the federal courts to circumvent the state bar
disciplinary process would intrude upon the province of the state court and run afoul of the
purpose of Younger.
In his response to the motion to dismiss, Hunter says that the Court should not dismiss
the monetary claims he has raised because he cannot assert those claims in the disciplinary case.
Regardless, the claims for money damages fail for the reasons discussed earlier in this opinion.
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For these reasons, under Younger and its progeny, the Court will abstain from intervening
in the pending state bar disciplinary hearing, and will dismiss the case. Thus, the Court need not
address the merits of Hunter's First Amendment claim at this time.
IV.
Conclusion
For the reasons set forth above, the Court GRANTS Defendants' motion to dismiss.
Hunter's pending motion for a temporary injunction is therefore DENIED as moot.
The Court will enter an appropriate order.
John A. Gibney,jrr.
United States District Judge
Date: May 9. 2011
Richmond, VA
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