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Here is good news for lawyers who hope to use their successful representation of specific clients to promote their law practices. Recently, the Supreme Court of Appeals of Virginia, addressing a lawyer’s blog, ruled that the lawyer had a First Amendment right to disclose certain non-privileged client information involving proceedings that were no longer pending. In Hunter v. Virginia State Bar, (Record No. 121472, Va. 2013), a three judge panel held that a lawyer’s blog posts were commercial speech and therefore entitled to First Amendment protection. The blog was not entitled to full First Amendment protection, however, because its primary purpose was to advertise the law firm.
The recent Virginia decision opens a door for bloggers that had been apparently closed when new Rules of Professional Conduct made the scope of client confidential information much broader than it had been under prior rules. Now, all information relating to a client representation is confidential unless it meets one of several exceptions. Under new confidentiality rules, the client need not be the source of the confidential information, and matters of public record, such as facts disclosed in publicly available court documents, may be deemed confidential. These changes to Rule 1.6 and other rules may prevent lawyers from publicizing court victories and other successful results obtained for their clients.
The Hunter decision approves the use of some blogs and advertising that might otherwise have been barred by confidentiality rules. The Hunter court held that the Virginia State Bar regulators violated the lawyer’s First Amendment rights when they interpreted Virginia’s Rule 1.6 (the old version) to prohibit the lawyer from disclosing in a blog non-privileged public information about former clients in connection with proceedings that were no longer pending. Because the blog was essentially advertising, the lawyer was required to post a disclaimer for all client-related posts in order to comply with ethics rules addressing lawyer advertising. To date, no similar ruling has addressed First Amendment protection for blogs by Illinois lawyers. But see M.R. 23794, ARDC No. 09 CH 89 (revealing certain client confidences in blog, as well as other misconduct, warranted 60-day suspension). The thoughtful decision of Virginia’s highest court should be persuasive authority on this topic.
This new rule, effective July 1, 2013, is part of a national trend to regulate the multijurisdictional practice of law and to prevent unauthorized practice. It changes the requirements of Rule 5.5(c)(3) of the Illinois Rules of Professional Conduct for "court-annexed" alternative disupte resolution proceedings.
Rule 3.5 of the Rules of Professional Conduct prohibits lawyers form communicating with jurors during a proceeding unless the lawyers are specifically authorized to do so. The comments (modeled on ABA Model Rule Comments that were likely drafted in 2002 or earlier) do not address many issues that have arisen since 2002 as a consequence of social media, such as Facebook, LinkedIn, Twitter, and other services that allow people to communicate in new ways. (Facebook was founded in 2004).
The New York City Bar Association recently published a well-written Formal Opinion on this timely topic. See New York City Bar Association, Formal Opinion 2012-02. It discusses “what ethical restrictions, if any, apply to an attorney’s use of social media websites to research potential or sitting jurors?
The New York City Bar Committee concluded that communication with a juror includes sending a “friend” request (or other request to share information) on a social network site. The inquiry focuses on the perception of the juror. Any contact by the lawyer that permits the juror to learn that the attorney has viewed or attempted to view a juror’s page or posts is a prohibited communication, according to the Bar Committee. Inadvertent communication may also invoke the disciplinary rule. Thus, the attorney must have an understanding of how specific social media services work to assure that no inadvertent communication takes place, such as when jurors’ postings appear to be public. Finally, the lawyer may not use deception, or the undisclosed services of a non-lawyer agent, to do what the lawyer could not do directly.
The foregoing should not be a big surprise — electronic media do not permit conduct to take place in cyberspace that would not be permitted in real space. But the New York City Bar Committee took a step beyond the obvious when it opined that a lawyer who learns of juror misconduct by researching the juror’s social media posting must promptly report the misconduct to the court.
The NYC Bar Committee relied upon New York Rule 3.5(d), which requires lawyers to reveal to the court promptly (i.e. as soon as reasonably possible) any improper conduct by a juror or potential juror. A version of that rule was part of the pre-2010 Illinois RPC. The ABA has opined that the duty to report juror misconduct exists even in the absence of a specific rule. See Rule 3.3, Comment 12 (Preserving the Integrity of the Adjudication Process) and Rule 3.5, Comment 1 (duty to avoid contributing a violation of criminal law relating to jurors). Further, under IPI Civil Pattern Jury Instruction 1.01 and Comments, each juror has a duty to report the misconduct of other jurors, including any improper comments posted on internet sites. It is therefore unlikely that an attorney can avoid reporting juror misconduct discovered during research on social media.