June 2010 | Earn one hour of MCLE Credit in Legal Ethics
By Wendy L. Patrick
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When a modern lawyer sits down at her desk in the morning and turns on her computer, her home page may come up as anything from Google to the Wall Street Journal to her Facebook home page. If some of her Facebook “friends” are also her clients, she may face some significant issues regarding confidentiality and the attorney-client privilege. And speaking of clients, just how does the modern lawyer communicate with her clients? Does she pick up the telephone every time she needs to ask one of them a question? No, she will normally send an e-mail or a text message — just like she communicates with everyone else. Maybe that communication even occurs “wall to wall” on Facebook! Welcome to the practice of law in the new millennium.
In an age of electronic communication and social networking, lawyers must be aware of their ethical and professional responsibilities and how they apply within the increasingly public realm of electronic communication. This article will discuss the widespread use of social networking sites such as Facebook, Twitter and LinkedIn, and how the use of such sites both professionally and personally can raise issues relating to client confidentiality, the attorney-client privilege and more.
Social networking and the practice of law
Social networking sites are enormously popular. Facebook currently has more than 175 million users. (Facebook v. Jeremi Fisher (N.D. Cal.) 2009 WL 5095269) How many lawyers are among the masses? Almost 50 percent of lawyers who responded to a recent 2008 Networks for Counsel survey commissioned by LexisNexis and Martindale Hubbell said they participated in online social networks. (Frances M. O’Meara and Allan Colman, “Facebook’s Flipside,” Daily Journal Newswire Article (June 15, 2009), available from http://www.dailyjournal.com.) While many law firms and lawyers use business-focused sites such as LinkedIn, Facebook offers the opportunity for both business and social contacts and thus appeals to a wide variety of professionals.
Who can you be “friends” with on social networking sites? In some jurisdictions, the answer may be: not a judge. The Florida Supreme Court in November 2009 Judicial Ethics Advisory Committee opinion number 2009-20 stated that while a judge may post comments and other material on the judge social networking site page as long as they do not violate the Code of Judicial Conduct, a judge may not add lawyers who may appear before him or her as “friends” on such sites, nor can they permit lawyers to add the judge as a “friend.” The committee explained that when a judge lists lawyers who may appear before the judge as social networking “friends,” that display may convey the impression that these lawyers “are in a special position to influence the judge.” The committee pointed out that judges are permitted to list other people as “friends,” including lawyers that do not practice in front of the judge.
Social networking and the accidental client
Lawyers who use services such as Facebook, LinkedIn and Twitter to stay connected to family, friends and colleagues should think twice about the information they post on their site. Many lawyers actively use these sites to share information about their professional lives and showcase their accomplishments. Some of these postings may prompt prospective clients or acquaintances on their “friends” lists to transmit confidential information in the expectation of receiving legal advice. When such communications are received, the lawyer may face issues of confidentiality and attorney-client privilege.
California attorney-client privilege: Evidence Code Sections 950 et seq
California Evidence Code Section 950 defines “lawyer” for purpose of the attorney-client privilege as either a person authorized to practice law or a person “reasonably believed” by the client to be so authorized. This is in the spirit of encouraging full disclosure by the client. (Cal Ev Code 950 Law Revision Commission Comment) A client is defined in Evidence Code Section 951 as “a person who, directly or through an authorized representative consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.”
“Confidential communication between client and lawyer” is defined in Section 952 as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” The client is the holder of the privilege per Section 953 and, subject to several regulations enumerated in Section 954, has a privilege to refuse to disclose attorney-client confidential communications.
California Business and Professions Code Section 6068 enumerates the duties of an attorney. BP 6068(e)(1) states that one of these duties is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” While the ABA Model Rules do address client confidentiality (See Model Rule 1.6), the specific language in 6068(e)(1) is not found in the ABA Model Rules. California lawyers are also governed by the California Rules of Professional Conduct. Relevant to our discussion is Rule 3-310, Avoiding the Representation of Adverse Interests.
If an attorney, even through implied contract, has acquired a duty to keep a speaker’s information confidential, Rule 3-310(E) may preclude the attorney from representing any other parties in the matter at issue. CRPC 3-310(E) provides that “a member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.”
What if, however, in the course of maintaining a page on a social networking site, an attorney has acquired confidential information from someone who never became a client?
California Formal Opinion 2003-161
The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion 2003-161 examines under what circumstances a communication made in a non-office setting by a person seeking legal advice may be entitled to protection as a confidential communication when the lawyer makes no agreements of confidentiality and does not accept the case. The opinion concludes that the communication may be entitled to protection under two circumstances:
if an attorney-client relationship is created by the contact or
The opinion points out that attorney-client relationships are formed by contracts, whether express or implied. In determining whether an implied contract is formed, several factors must be considered, including whether the lawyer agreed to look into the matter, provided legal advice and/or was consulted in confidence; and whether the individual seeking advice “reasonably believes that he or she is consulting a lawyer in a professional capacity.” (citations)
Even if no attorney-client relationship is formed, depending on the circumstances, the lawyer may have a duty to keep the information confidential. The opinion first examines whether the person seeking advice is a “client” for purposes of the privilege, and concludes that the critical factor in determining this issue is the conduct of the attorney. The next question is whether the communication is confidential. The opinion lists four factors to consider:
The opinion notes that the attorney-client privilege is an evidentiary privilege (citing Cal Evid Code Sections 952-955) that “permits the holder of the privilege to prevent testimony, including testimony by the attorney, as to communications that are subject to the privilege.” It explains that California Business and Professions Code Section 6068(e) is broader than the attorney-client privilege because it covers all information acquired during the course of the professional relationship “that the client has requested be kept secret or the disclosure of which would likely be harmful or embarrassing to the client.” (citations) The opinion concludes that an attorney may owe a duty of confidentiality under Cal. Bus and Prof Code Section 6068(e) and CRPC 3-310(E) to persons who never actually become clients.
How does this apply to social networking sites?
We might argue that it would not be reasonable for a prospective client to assume he was communicating with the lawyer in confidence if he is communicating via social media sites, given the obvious public nature of the information. The prudent lawyer might nonetheless consider posting disclaimers on her social networking pages similar to those found on many legal websites, clarifying that unsolicited communications will not be considered confidential. Clearly, under factor number one in Op. 2003-161 regarding confidentiality, the person seeking advice from the lawyer on his or her Facebook page would be doing so in “the presence of non-essential people who can hear (or see) the communication,” and posting it on a public page may be in effect making the information “public knowledge” per factor number four.
Posting information publicly would also arguably remove the communication from Ev. Code Section 952’s definition of a “confidential communication.” But does it matter on what part of the lawyer’s site the client posts the communication? What if instead of posting information on the lawyer’s “wall,” the client sent the lawyer a personal message? Questions like these lead into the analysis of unsolicited communications.
The savvy lawyer will have a disclaimer on his site in order to guard against false expectations of creating an attorney-client relationship. Regarding website disclaimers, California Formal Op. no. 2005-168 opined that a lawyer who provides his or her website visitors with a means by which they can communicate with the lawyer on the site may effectively disclaim owing a duty of confidentiality “only if the disclaimer is in sufficiently plain terms to defeat the visitors’ reasonable belief that the lawyer is consulting confidentially with the visitor.” The opinion goes on to specify that “[s]imply having a visitor agree that an ‘attorney-client relationship’ or ‘confidential relationship’ is not formed” would not defeat a visitor’s reasonable belief that the information transmitted to the lawyer on his or her site will be kept confidential.
Regarding an unsolicited e-mail that is not in response to an invitation on a website, despite containing what one might otherwise consider confidential information, unsolicited email — just like an unsolicited detailed message on an answering machine — normally will not constitute a confidential communication between lawyer and client. See San Diego County Bar Assn. Legal Ethics Committee Opinion 2006-1 (http://www.sdcba.org/ethics/ethicsopinion06-1.htm).
Note also that lawyers must be careful not to post anything on their social networking page that could arguably constitute the practice of law in jurisdictions in which they are not licensed. Many lawyers include disclaimers to this effect right on their site, specifying the states in which they are licensed.
Duty to prospective clients
Regardless of whether or not an attorney-client relationship is ultimately formed, lawyers owe certain duties to prospective clients. The burning question, of course, is when exactly does someone become a “prospective client?” Although not binding in California, we can look to the ABA Model Rules of Professional Conduct for guidance.
Rule 1.18 Duties to Prospective Client
ABA Rule 1.18 addresses a lawyer’s duties to a prospective client. The rule defines a “prospective client” in subsection (a) as “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.”
Even when no client-lawyer relationship results, however, subsection (b) provides that “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.”
The rest of the rule provides as follows: (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (Paragraph (d) provides the cirumstances under which representation is permissible even when the lawyer has received disqualifying information.)
Facebook and other social networking sites are a great way to keep in touch with family and friends, but are not good media through which to communicate with current or prospective clients. A working knowledge of the law and ethical rules governing the formation of the attorney-client relationship and issues of confidentiality will help prevent you from acquiring an “accidental client” online. Knowledge of these rules will also permit you to deal with uninvited electronic communications politely, effectively and ethically. Good luck!
*This article does not constitute legal advice. Please shepardize all case law before using.
• Wendy L. Patrick is a San Diego County deputy district attorney in the Sex Crimes and Stalking Division. She is the immediate past chair and current co-chair of the San Diego County Bar Association Legal Ethics Committee.
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