A lesson in the ethics of social media

At the ISBA Bench and Bar Section Council’s meeting on March 2, 2018, our members received a preview of the CLE webinar presented by the Section Council on March 6, 2018, entitled, “The Ethics of Social Media for Attorneys and Judges.” The webinar was presented by Panelists Jayne Reardon, executive director of the Illinois Supreme Court Commission on Professionalism, Judge Lynn Egan, and ethics attorney Allison Wood, assisted by Judge Steve Pacey.

At our meeting, Judge Pacey led an informative discussion on a hypothetical called “Flogging Blogging,” wherein an attorney started a blog about bird watching and James Bond movies. Sandwiched in between these discussions, however, the attorney wrote about cases in which his clients messed up, as well as his unfavorable opinion of a judge before whom he routinely appeared and whom he did not believe to be very smart. The Section Council was then asked to discuss ethical concerns raised by this hypothetical.

As a general matter, the Section Council agreed that social media is “fraught with peril,” and that there is a very little guidance in the form of case law involving social media. But everyone agreed that when the blogging attorney wrote about his client, he may be violating Rule 1.6 of the Illinois Rules of Professional Conduct (RPC), “Confidentiality of Information.” RPC 1.6(a) provides: “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) or required by paragraph (c).” None of the exceptions set forth in RPC 1.6(b) or RPC 1.6(c) applies to the blogging hypothetical. 

Comment 2 to RPC 1.6 observes that 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 the representation.” This, the Comment aptly points out, “contributes to the trust that is the hallmark of the client-lawyer relationship.” Further, Comment 2 states that the promise of confidentiality encourages clients to “seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legal damaging subject matter.” Such thorough and honest communication by the client enables the lawyer “to represent the client effectively,” as Comment 2 notes, and “if necessary, to advise the client to refrain from wrongful conduct.” Clearly, an attorney who blogs about his client not only breaches the promise of confidentiality but destroys the client’s trust in his lawyer.

The Section Council also noted that the lawyer blogging about his unfavorable opinion of a judge is likely in violation of RPC 8.2, “Judicial and Legal Officials.” RPC 8.2(a) provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications of the judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” The Comment to RPC 8.2 notes that “false statements by a lawyer can unfairly undermine public confidence in the administration of justice.” To that end, the Section Council further opined that the blogging lawyer may also be in violation of RPC 8.4(d), by engaging in “conduct that is prejudicial to the administration of justice.”

Following the Section Council’s discussion, it was revealed that the blogging hypothetical was based on an actual disciplinary case, In the Matter of Kristine Ann Peshek, 09 CH 89, Sup. Ct. No. M.R. 23794 (May 10, 2010), a former Winnebago County public defender. In her blog, the Respondent referred to her clients by their first names, a derivative of their first names, or their jail identification numbers. Her blog was open to the public and not password protected. Her blog revealed that a client had pled guilty to a drug charge when he was not guilty, in order to protect his older brother, and that another client had lied to the judge about his drug use and whom Respondent had encouraged not to rectify her misstatement to the court. Respondent’s blog also referred to the judge as being a “total asshole” and as “Judge Clueless.” With respect to the disclosures in the blog, it was determined that Respondent violated RPC 1.6(a), RPC 8.4(a)(5), and Illinois Supreme Court Rule 770, “conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.” The Illinois Supreme Court suspended Respondent for 60 days.

Notably, on March 6, 2018, shortly after the Section Council’s meeting, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480, “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary” (the “Opinion”). The Opinion stressed that lawyers who blog or engage in other public commentary, including listserves, online articles, website postings, and microblogs such as Twitter may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules of Professional Conduct. Thus, the Opinion noted that Rule 1.6(a) may be violated by describing public commentary as a “hypothetical” if there is a “reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.” 

Further, the Opinion stated that information about a client’s representation set forth in a court’s order, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality, which extends “generally to information related to a representation whatever its source and without regard to the fact that others may be aware of or have access to such knowledge.” Finally, the Opinion remarked that although the First Amendment to the United States Constitution guarantees individuals’ rights to free speech, “this right is not without bounds” and that lawyers’ professional conduct may be “constitutionally constrained by various professional regulatory standards” as embodied in Rules of Professional Conduct.