Social Networking Sites Pose Risks for Lawyers

By Bruce A. Campbell. 
             Some of us may have heard our mothers at one time or another tell us to choose our friends wisely.  The reason for this advice was that what our friends do or say often can be a reflection on us.  That reflection more so today than ever before, can include information that lasts perhaps forever in the online electronic ether.

            Interestingly, a recent American Bar Association article, based on a survey of  of ABA members, indicated that the number of attorneys who have joined an online social network, such as MySpace or Facebook, has now reached 15% of the ABA members polled.  ("Edward A. Adams, Web 2.0 Still a No-Go," ABA Journal. September 2008).  Undoubtedly, the number of lawyers participating in on line social networks will continue to increase.  One of  the risks of  social networking sites is the risk of licensing for lawyer candidates and potential attorney discipline for lawyers who have been admitted a practice.  Evaluating this risk is somewhat difficult because electronic social networking is relatively new.  Nevertheless, over the last couple of years, there have been a number of students that secured a well paying job prior to graduation from college, only to have the job offer rescinded once someone in the company’s human resource department checked the MySpace or Facebook account of the applicant.  Frequently, social networking accounts are awash with photographs reflecting behaviors that might make a human resource department cringe.  Aside from the risk of losing a job offer, there are plenty of other reasons why caution should be exercised if you choose to participate in electronic social networking sites.

Character and Fitness Concerns

            For applicants awaiting licensure, the question of whether something that is found on a social networking site might be used against them in their efforts to become licensed is a serious one.  Rule IV of the Rules Governing Admission to the Bar of Texas, in pertinent part, states that:

The purpose of requiring an Applicant to possess present good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Texas Disciplinary Rules of Professional Conduct.

            An example of how information about drinking or use of controlled substances might be viewed by the Board of Law Examiners can be seen in Board of Law Examiners v. Coulson, 48 S.W.3d 841 (Tex. App. Austin, 2001).  In Coulson, an applicant disclosed in his application that he had undergone treatment for alcohol and substance abuse almost twenty years before his application.  The applicant was told by the Board he would have to be evaluated by a social worker and a board evaluator, and see a master addiction counselor before he could be issued a probationary law license.  Despite testimony by both counselors that the applicant did not suffer from chemical dependency, and similar testimony from his father, wife, employer and former classmate, the Board determined that "there was a clear and rational connection between the Applicant's possible chemical dependency, ... and the likelihood that he might fail to discharge properly his duties to a client, a court or the legal profession.”  In overturning the Board's decision, the district court found that there must be a present chemical dependency before imposing a probationary license.  The Court of Appeals agreed and found that there was insufficient evidence to find a present chemical dependency.  Although the applicant’s behavior did not constitute criminal activity, it is noteworthy that the Board was concerned the applicant’s treatment for alcohol and substance abuse twenty years prior could affect his character and fitness to practice law.  The case suggests that current images of an applicant in a state of intoxication found on a social networking site, might lead the Board to question the character and fitness of the applicant and his ability perform his duties to a client, a court and the legal profession.

Discipline for Lawyers

            For those who have received their law license, the risks stemming from posting information and images on electronic social networking sites also exists.  Rule 8.04 of the Texas Rules of Disciplinary Conduct, in pertinent part, provides that:   

(a) A lawyer shall not . . . .

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects.  (emphasis added)

This section of the Disciplinary Rules is often referenced as the “officer and a gentleman rule.” The rule is often broadly interpreted.  For example, an attorney that served alcoholic beverages to a minor, was found to have violated the Kansas version of the rule.  In re Berg, 955 P.2d 1240.  Similarly, a Vermont lawyer was suspended for the use and cultivation of marijuana based on Vermont’s version of the rule.  In re Doherty, 650 A.2d 522 (VT. 1994).

            Of course some courts have found that drug possession, which constituted a felony, was a crime of moral turpitude, thus allowing discipline to be meted out to the lawyer. The Florida Bar v. West, 550 So.2d 462 (Fla. 1989), Matter of Gibson, 302 S.E.2d 184 (S.C. 1990).  Thus, pictures of lawyers on a social networking site with drug paraphernalia or other incriminating substances could lead to discipline of the lawyers.

            Unfortunately, another potential problem with some social networking sites is that unless the account holder sets up their profile to block the comments of other users, fellow site users are able to post comments and images to an account holder’s profile.  Potentially, other site users could post information, photographs or other material that reflected the account holder had engaged in improper behavior.  Thus, the lawyer’s own contacts could post information which had the unintended consequence of subjecting the lawyer to discipline.

            In a related vein, it is noteworthy that some of the electronic social networking sites allow blogging from the site.  Attorneys that blog negatively about judges risk violating Rule 8.02(a) of the Texas Disciplinary Rules of Professional Conduct, which 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 or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(Discussed generally in Texas Lawyer’s August column A Primer on What Lawyers Can Say About Judges.)

Is it Safe?

            Ultimately, the content that a lawyer chooses to post or allow others to post about them on a social networking site is deserving of consideration.  Perhaps our mother’s advice to choose our friends wisely will serve us well as lawyers continue to move forward with electronic social networking.

Reprinted with permission from the December 15, 2008 edition of Texas Lawyer. © 2009 Incisive Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, call 214-744-7723 or contact Luke.Miller@incisivemedia.com.