sunEthics

Business and Social Media and Blogging and the Risk of Bar Discipline

 by

Joseph A. Corsmeier

            A Florida lawyer was upset with a judge and did what many people do these days; he talked about her on a web blog and said that she was an “Evil, Unfair Witch”.  Since he is a lawyer, he was prosecuted by The Florida Bar and received a public reprimand.  As we all know, that lawyer is not the only one who has blogged and/or used web business and social media; however, we lawyers face disciplinary risks since our freedom to complain (particularly about judges) is very much limited by the Bar rules (Rules 4-8.2(a) and 4-8.4(d) if you want to look it up).

            An Illinois assistant public defender was fired (after 19 years) as a result of public blog postings about clients and judges and faces discipline by the Illinois Supreme Court.  In a complaint filed by Illinois disciplinary counsel, the lawyer was charged with describing and discussing her clients and their confidences and made it possible to identify them since she referred to them by their first names, a derivative of their first names, or by their jail identification numbers.  The lawyer was also charged with blogging about a confidential admission by one of her clients to making false statements to a judge at a sentencing hearing and then failing to tell the judge about the false statements to correct the record.  Finally, the lawyer was charged with calling a local judge “a total a—hole” and another “Judge Clueless” in her blog. 

            A California lawyer apparently caused a criminal conviction to be reversed because of his blog postings while serving as a juror in that case.  The lawyer was accused of posting details of the pending case on his blog and failing to disclose that he was a lawyer during jury selection.  He defended that allegation by stating that he had not been working as a lawyer at the time and that he had only been asked his “occupation”.  The lawyer lost his job and was suspended from practice for 45 days.

            As many (if not most) of you are aware, the Bar’s review and regulation of social networking websites and lawyer web directories is in its infancy and the Florida Supreme Court has not implemented specific rules related to those electronic communications (yet).  An exception is the current limited regulation of lawyer websites, which are subject to general lawyer advertising rules prohibiting false and/or misleading statements and the requirement that the lawyer’s office location be identified, among other requirements.   In a February 2009 opinion, the Florida Supreme Court rejected the Bar’s proposed rules for regulating lawyer websites and encouraged the Bar to consider stricter regulations and restrictions.

            We lawyers are always subject to potential Bar disciplinary sanctions, even in our private lives (and blogs), especially if it is disseminated on the internet to potentially thousands (if not millions) of people.  The Supreme Court’s February 2009 opinion stating that the Court would entertain (and some might say have advocated) more restrictive rules related to lawyer websites could be a precursor to potential additional review and regulation of social and business networking pages and websites and lawyers in the future. 

Joseph A. Corsmeier is a Martindale-Hubbell "AV" rated attorney who practices in Clearwater, Florida.  His practice consists primarily of the defense of attorneys disciplinary and admission matters.  He represents all professionals in discipline and admission matters before all state Boards and Agencies.  His practice also includes ethics advice, expert opinions on ethics, malpractice, disqualification, attorney’s fees, and risk management issues.  His practice also includes workers’ compensation and labor law.  He is available to answer attorney ethics and professionalism inquiries, provide expert opinions on ethics and malpractice issues,  assist attorneys to insure compliance with the Rules Regulating The Florida Bar, and in defense of attorneys before the Florida Board of Bar Examiners and  in Florida Bar disciplinary matters.

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