Think Twice Before You Post: How Social Media Waives Confidentiality

Posted: August 8, 2018

Social Media and Attorney-Client Privileges

Privacy is actively discouraged by using social media. Chat rooms encourage public discussions, Facebook posts are available for friends to see, and lengthy arguments fuel a frenzy of comments and re-tweets on Twitter feeds. Eighty percent of the U.S. population operated a social media profile in 2017, and an estimated 2.34 billion users were active by the next year – that’s a lot of online sharing.

But how does social media, and the public discussion it fosters, play a role in litigation? The American Bar Association claims developments in online technologies change how lawyers handle former clients’ information — once that information has become “generally known” on public platforms like Facebook and Twitter. This phenomenon builds upon Model Rule 1.9(c)(1), which establishes the rules and exceptions for confidentiality shared between a lawyer and former clients.

Developments in online sharing now require lawyers to consider clients’ social media content before using it in the litigation process. Lawyers should also use their personal profiles and accounts carefully to avoid disclosing protected information about a case. It only takes a click to cause an ethical catastrophe in a world of public sharing, and online engagement affects litigators and clients alike.

Exceptions to Attorney-Client Privilege

Model Rule 1.9 Duties to Former Clients protects confidentiality between lawyers and past clients, upholding privileges even after a case has been closed. A litigator’s duty to protect privileged information doesn’t end with the termination of a case — unless that information becomes generally known in public spheres or specialized fields. The reasoning here implies that information already known to the world may as well be used for the benefit of future cases.

Model Rule 1.9(c)(1) outlines the generally known exception rule, which allows lawyers to use information that is generally known by the public in current cases. The rule was introduced to the Model Rules in 1983 and more recently came under scrutiny by the American Bar Association after failing to thoroughly define generally known information.

The ABA helped resolve the matter in Formal Opinion 479. They declared information is generally known when 1) it is recognized by the public in a relevant geographic area and 2) when it is widely recognized by the client’s industry, profession, or trade.

Committee members emphasized information is not generally known if it’s merely made available in public places like libraries or courtrooms. To qualify, the client’s information must gain public notoriety and be widely considered by the community.

Where Social Media Plays a Role

Information found on online publications may qualify as generally known information, waiving confidentiality shared between the lawyer and former client. The client’s number of followers and discussion participants are likely to be examined, helping determine if the information has been widely considered by an online community. While the rules are still uncertain, committee members formally opine that social media will likely be incorporated into the list of exceptions.

Litigators are operating in a grey area here. Some jurisdictions encourage lawyers to seek departing clients’ consent before accessing information on social media platforms. If a client’s online information isn’t considered generally known and a lawyer uses it anyways, legal consequences may ensue.

The ABA, therefore, recommends weighing in favor of the client when operating in a realm of uncertainty. But be on the lookout for changes in professional conduct as social media becomes more complex and relevant. It’s changing our social landscape and the way litigators access client information.

When Lawyers Blog, Post, and Tweet

lawyer-using-social-media-in-officeLawyers are also wise to use their own social media accounts with care, making sure not to breach attorney-client privileges. Divulging sensitive information for the sake of educating online audiences may have serious consequences, and litigators should think twice about engaging in online discussions for the world to see.

Formal Opinion 480 encourages lawyers who engage online to refrain from communicating anything that may reveal private information. This opinion stems from Model Rule 1.6(a), which states confidentiality applies to matters discussed in private between a lawyer and his client as well as all sources of information relating to client representation. Engaging in online threads, posts, or tweets that reveal sensitive information may waive confidentiality. The trick is discerning if the information that’s posted qualifies as one of the exceptions to Model Rule 1.9.

It’s easy to post online. The advent of social media makes sharing information effortless and fun, but clients and attorneys should post responsibly, with care, or not at all. While recent examination of the Model Rules shows how online information may be exempt from confidentiality, litigators should still proceed with caution when handling and disclosing information on online forums.