By David Hricik, Mercer Law School
This month, the Professional Ethics Committee for the State Bar of Texas issued Opinion No. 685, which addressed whether a lawyer could encourage current or former clients to post favorable reviews or comments on social media sites. The Texas opinion stated that, so long as nothing of value was given for the reviews and that the lawyer did not encourage false, misleading, or unfounded statements, this would be appropriate.
On the other hand, while not deciding whether a lawyer has an obligation to monitor posts, the opinion joined the views of other states and explained that “if lawyer becomes aware that a client posted a favorable review that is false, misleading, or unfounded, the lawyer should take reasonable steps to see that the statement is corrected or removed.” The opinion suggested that, if the lawyer controlled the site, the statement should be removed, but even if the lawyer did not, the lawyer should ask the author to address the concern, or “consider” asking the owner of the site to address the concern. Finally, it suggested that if that failed, the lawyer should make a “curative statement” — but one that did not violate client confidences.
Lawyers have been taken to task several times for revealing client confidences, but it has been after someone posts a negative comment and the lawyer, defending herself, revealed client confidences. The Texas opinion, like others, emphasized that revealing confidential information even in response to a negative review is improper, unless the client consents to disclosure.
I’m imagining a former client posting “David got me a better result than any other lawyer could have,” and me having to post something in response! So, below, please only post truthful things and don’t overstate my abilities or I’ll have to cure your kindness.
By David Hricik
I’ve long written about ethics and technology (my old paper about email security, I am proud to say, pushed back on the idea that (at least in the 1990s) email was insecure). For an AIPLA speech I’m giving next month, I wrote a paper on various ethical issues that arise with the use of social media. It is available here.
The issue that I’ve run into a few times now in IP cases is judicial research into facts. I represented people in one of those matters, which was before the OED, and can’t reveal anything much about it, and the other was a case where judicial research led to a show cause order that was based upon…. poor judicial research. The paper points out those and similar problems.
In Kyko Global, Inc. v. Prithvi Info. Solutions, Ltd., (Wd. Wash. June 13, 2014), plaintiff’s attorneys in a civil fraud suit bought a computer that had been seized from one of the defendants. The defendants figured it to and moved to disqualify the firm. The court denied the motion because the plaintiff’s lawyers had done nothing wrong., even though they went digging for meta-data mining on the hard drive.
Interestingly, the court held that privilege had not been waived by the plaintiff because he had believed that he had adequately erased the hard drive.
Lots of lessons. I remember being told the military burns computer hard drives because they can’t be truly “erased.”
A few judges wrote very glowing things about a lawyer:
"Mr. Dwyer is, I think, an exceptional lawyer, one of the most exceptional lawyers I've had the pleasure of appearing before me. He is tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position, but no one can fault his zeal and his loyalty to his client, and no one can question his intellect . . . ." Hon. Jose L. Fuentes, J.S.C., in an unpublished judicial opinion concerning a fee application made in an employment discrimination case brought under the New Jersey Law Against Discrimination.
"The inescapable conclusion is . . . that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer. . . . Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved." Hon. William L. Wertheimer, J.S.C., in an unpublished judicial opinion concerning a fee application made in an employment discrimination case brought under the New Jersey Law Against Discrimination.
"Based upon my observations of him in court there's no question in my mind that he is in the upper echelon of employment lawyers in this state . . .” Hon. Douglas H. Hurd, in an unpublished judicial opinion concerning a fee application under the New Jersey Conscientious Employee Protection Act.
Lawyer puts these on his web page. Result? New Jersey adopts a guideline prohibiting this. The federal district court opinion denying the lawyer's motion to enjoin implementation of the regulaton, Dwyer v. Cappell, is here.