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Bar News - January 13, 2012 Criminal Law: A Criminal Defense Attorney’s Guide to Social Media: the Keyword is DON’T By: David H. Mirsky
After reading this article, please consult your Rules of Professional Conduct, paying particular attention to the sections pertaining to the "Client-Lawyer Relationship" and the lawyer as "Advocate". If you are a lawyer who does not practice in the area of criminal law, you will likely notice that the caveats contained in this article apply to your area of practice as well. Let’s consider the basic ethical principles that constrain the behavior of a properly functioning criminal defense attorney. The most basic of these is the duty to maintain a lock and key as to all communications from client to attorney. We all know about the attorney-client privilege. The properly functioning criminal defense attorneys I know never disclose any client communication to anyone unless there is a specific purpose to do so that furthers an important client interest. So if you’re wondering how the duty to maintain the inviolability of client communications can be harmonized with the modern behavior of expressing one’s inner thoughts to selected groups of people online, I will tell you: it can’t. You can’t disclose privileged communications on Facebook, Twitter, Google+, or in any form of blogging endeavor. Do not do it under any circumstance. In tandem with the requirement of maintaining a lock and key as to all client communications is the similar but broader requirement that a criminal defense attorney must maintain the confidentiality of all matters pertaining to the representation of a client. By maintaining confidentiality I mean that a properly functioning defense attorney cannot disclose information about a client or a matter pertaining to a client unless the disclosure is required to further an important client interest. The use of online social media and the practice of blogging are inherently in opposition to a criminal defense attorney’s duty to maintain confidentiality of all client matters. What does that mean? It means that if you participate in the use of Facebook, Twitter, Google+, or if you participate in any kind of blogging, that participation cannot in any way involve a client matter. So just don’t do it. To younger attorneys these caveats may seem harsh, and maybe they are. But the job of a criminal defense attorney is serious. It is so serious that the role was provided for in our Bill of Rights. See the Sixth Amendment to the United States Constitution ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to have the Assistance of Counsel for his defence."). As a criminal defense attorney you have taken on a role that is necessary to protect the individual against the power and authority of the State. We know from our history as a nation that people from minority groups have at times faced legally sanctioned persecution where the attributes of a fair trial have not been fully present. Our Constitution’s requirement of effective assistance of counsel mandates the existence of serious, dedicated, and ethically responsible defense attorneys whose presence in the legal system ensures public protection against the potential tyranny of the state. The requirements of maintaining the inviolability of client communications, client information, and attorney work product, are facets of the underlying right that all accused individuals have to the effective assistance of legal counsel. Without effective counsel, there cannot be a fair trial, and without the right to a fair trial, those in power can always squelch their opposition by placing their opponents under the threat of criminal prosecution. The right to a fair trial by a jury of one’s peers would be meaningless if trials are going to be conducted by attorneys who disclose privileged information without regard to the rights and interests of their clients. I’m not saying that criminal defense attorneys can’t communicate online. You can use online social media to encourage other attorneys to attend an important professional event, you can write a blog that comments on the most recent criminal procedure case handed down by the United States Supreme Court, you can communicate with friends and family about matters not pertaining to your work. You can participate in Facebook, Twitter, Google+ or other forms of blogging, just don’t discuss your clients, your cases, or the people involved in your work (i.e., judges, other attorneys, witnesses). Don’t post about it, don’t tweet about it, don’t blog about it. And if for some reason you make a mistake and post something that later seems inappropriate, don’t leave it out there. Delete it. David Mirsky is a criminal defense attorney and partner in Mirsky & Petito, Attorneys at Law, in Exeter. His work is currently focused on post-conviction litigation in homicide cases. David has practiced extensively in the federal courts. |
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