It goes without saying, but also bears repeating – that lawyers should be careful to avoid conduct that has the potential to mislead or deceive others when using social media as it relates to their law practice.
Over the past few years, ETHICSearch research lawyers have published several Eye on Ethics and Tips of the Month articles that have surveyed state and local bar association ethics opinions and case law on a variety of topics as they relate to social media. See, e.g. Is That Egg on your Facebook? (April 2013) As addenda to this article See, Judge delays civil trial because of lawyer’s Facebook post, and Attorney flagged for Facebook selfie with client after winning murder acquittal Milwaukee News Sentinel,September 28, 2015.
See Also Facebook: Monitoring juror social media networking sites; “friending” employees of adverse parties (November 2011) and Facebook: State bar opinions address information gathering (November 2010).
For issues as they relate to a lawyer’s advice to clients about items that should be included or removed from their social media sites See, Privacy Settings and Postings on Social Media: Etched in Plastic or Carved in Stone?
In other recent developments See Also In the Matter of Eric Gamble, No. 112, 037 (Dec. 5, 2014) (Lawyer suspended for 6 months for communications with unrepresented adverse party on social media).
Disciplinary Counsel v. Brockler
A recent case adds a new dimension to lawyer ethics and social media.
In Disciplinary Counsel V. Brockler, 2016 Westlaw 744412 (2016), Brockler, a prosecutor handling a murder case was listening to telephone conversations recorded between an incarcerated defendant and his girlfriend. The girlfriend was going to provide an alibi for the defendant stating that he was with her and her friend Marquita Lewis, but on hearing the conversation between the two, Brockler became convinced that she was going to provide false testimony. He also sensed that there was some acrimony between the two, and that the girlfriend had suspicions that he had been unfaithful to her with a woman by the name of Taisha Little.
Brockler then conceived a plan to exploit the rift between the two thereby acquiring damaging information that she did in fact intend to provide false testimony. He set up a new Facebook page under the name of Taisha Little, using the picture of an African American woman he found on the internet. As Taisha Little, he also friended certain individuals he gleaned from listening to the defendant’s recorded telephone conversations from prison.
Posing as Taisha Little, he began communicating with the girlfriend and Lewis, claiming as Taisha Little that she was the mother of the defendant’s 18 month old child, and was desperate to have him released from jail so that he could pay child support. He continued this ruse until the girlfriend became suspicious at which point he deleted the Facebook account.
Soon thereafter, Brockler went on medical leave, and left the case file with another prosecutor who learned of Lewis’ chats with “Taisha Little” when the police gave him copies of the correspondence they had obtained from Lewis. The new prosecutor brought these transcripts to Brockler’s attention, but he waited nearly three weeks before he disclosed that he was Taisha Little. At this point, the prosecutor informed his superiors of the ruse, and the prosecutor’s office withdrew from the case, and Brockler was fired. And a special prosecutor was appointed to take over the case.
The court found that Brockler had violated Rules 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation) and (d) (conduct prejudicial to the administration of justice) of the Ohio Rules of Professional Conduct.
Brockler argued that an existing Comment to the Ohio Rule 8.4 that provides an exception for lawful covert investigative activities should be expanded to encompass Brockler’s conduct, but the Court agreed with the Disciplinary Board’s finding that “Rule 8.4(c) requires an assistant prosecutor to refrain from dishonesty, fraud deceit and misrepresentation when personally engaging in investigatory activity”. The Court also agreed with the board’s conclusions that Brockler’s conduct was also prejudicial to the administration of justice “because it had the potential to induce false testimony, injected significant new issues into the case shortly before trial, and materially delayed the resolution of the case by requiring further investigation and the appointment of a special prosecutor.”
Brockler was suspended from the practice of law for one year.
In the early days of e-mail communications before the rise of social media, a sage piece of advice for both lawyers and the general public was to avoid sending an e-mail with content that you would not want to appear on the front page of the New York Times. This also seems particularly apropos to social media postings and communications, especially when they relate to your law practice.
This is a rapidly developing area in the law of lawyering and many bar associations and legal scholars have been exploring social media’s interactions with the ethics rules In the event that you have questions about how the rules apply to your activities on social media, as always, check the local ethics opinions and case law of the jurisdiction. Your state or local bar may be able to help.
—by Peter Geraghty, ETHICSearch Director