Ethical Considerations for Lawyers
Ethics Corner Article
Dear Ethics Committee:
May a lawyer who represents a party in a pending case comment on social media about the case?
A lawyer representing a party in a case may comment on social media about that case only if doing so is consistent with the client’s interests and not prohibited by the Rules of Professional Conduct. The lawyer should proceed with caution though, bearing in mind the guidelines set forth in Rule 3.6, which governs trial publicity. Specifically, the lawyer may not make a statement, even if in the client’s best interest, outside of court that “the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” RPC 3.6(a).The Rule contains several illustrations of statements that “more likely than not” will have such an effect. RPC 3.6(b). These include comments on the character or reputation of a party, the likelihood of a plea of guilty in a criminal case, whether a criminal defendant made a statement or refused to do so, the results of any examinations or tests, and disclosure of inadmissible evidence. Notwithstanding these prohibitions, there are several statements a lawyer is permitted to make under the Rules. For example, an attorney is entitled to describe the nature of the claim in the case or a defense to that claim. An advocate may also state that an investigation is in progress, and explain the steps, both upcoming and those that have already occurred, in the legal process. See RPC 3.6(c).
In the context of a criminal case, the rules regarding pretrial statements are further developed. In addition to the limitations and permissions described in the preceding paragraph, Rule 3.6(c)(7) allows an attorney to make statements about the identity of both the defendant and, subject to certain limitations, the alleged victim. Regarding statements about the identity and other details of the alleged victim, counsel should consult the victim’s rights act (R.S.A. RSA 21-M:8-k) and the New Hampshire Rules of Criminal Procedure regarding the protection of certain individuals. Counsel may also state whether the defendant has been apprehended, the fact, time, and date of the arrest, and the identity of the arresting officers.
Prosecutors have further responsibilities which are set forth in RPC 3.8(f). This Rule prohibits prosecutors from “making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused” unless the statements are “necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.”
Although a lawyer can make the statements as described in Rules 3.6 and 3.8, counsel must carefully consider Rule 1.6 before doing so. Under Rule 1.6(a) , “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).” The exceptions in paragraph (b) do not typically pertain to the question of commenting on social media, although the exception in Rule 1.6(b)(1) could become relevant in an emergency situation. Consequently, the question here is whether the client has given express or implied consent. A lawyer cannot safely assume that the types of statements allowed in Rule 3.6 are impliedly authorized. It may be a rare client who would not want counsel to deny the charges, to state the substance of the claim, or declare it will be vigorously pursued. However, in the context of a comment on social media, a posting could have unintended consequences. It could be re-posted on sites and in situations that the client did not anticipate. Additionally, it could be mischaracterized and even misrepresented in subsequent postings by other people. A comment on a website could also heighten the possibility that an internet search of client’s name would return a result that would associate the client with the case for years to come. All these possibilities create a risk that the lawyer and client could lose control of the narrative. Thus, it is advisable to not make such a comment without an individualized evaluation of whether the specific disclosure is consistent with the understanding of the client and serves to advance the goals of the representation.
In fact, the Rules anticipate that counsel and the client will discuss the objectives of the representation and the means by which they will be pursued. See RPC 1.2(a); RPC 1.4(a)(2). As part of that conversation, the lawyer should discuss the nature and content of any potential public statements. Going forward, the lawyer can then be more comfortable that a public statement is authorized without pausing to have an explicit conversation with the client. This would be a vital understanding to have if a situation arises unexpectedly and the lawyer does not have time to consult with the client.
This conversation is essential for an additional reason. The subject matter covered by Rule 1.6 is quite broad. It applies to all information relating to the representation of the client and exceeds the scope of the Attorney/Client privilege. See RPC 1.6 ABA cmt 3. (“The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 480 (2018) (“[I]nformation about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality.”). Although it is beyond the scope of this article, we note that a lawyer’s duty of confidentiality extends to former clients. See RPC 1.9(c)(2).
In conclusion, the professional conduct rules do not categorically prohibit counsel representing a party in a case from commenting via social media. However, they do bar certain comments and require that a lawyer ensure the comment is permitted by Rule 1.6, as either impliedly or expressly authorized, before making disclosures otherwise permitted by Rule 3.6 and 3.8. The best way to avoid any misunderstanding as to the scope of any implied authorization is, at an early point in the case, to have a discussion with the client about the potential use of social media, including the content of any potential public commentary. As a result of that conversation, counsel will better understand what types of statements are “impliedly authorized” by the client, and which ones the client does not approve. The Committee recognizes that there may be situations in which such discussion is not feasible. In those situations, the lawyer must be guided by the language and comments of Rule 1.6.
This article is second in a series of Ethics Corner articles on Social Media and Ethics and was submitted for publication to the NHBA Board of Governors at its December 2, 2019.
The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing Robin E. Knippers at firstname.lastname@example.org