I have beaten the drum for many, many years now about lawyers not understanding the true scope of their obligation of confidentiality under rules patterned after ABA Model Rule 1.6. The ability to quickly share information far and wide online has not been helpful to lawyers who lack that understanding. I remain astounded at how lawyers do not seem to recognize the unnecessary risk they are taking on by touting achievements in particular cases online.
Now, of course, I’m not privy to discussions between those attorneys and their clients in advance of such efforts so, perhaps, everything I see is kosher because every time I see a lawyer engage in such conduct they have gotten their client’s consent to do so in advance.
Based on my experience over the past 20 years though, I’m highly skeptical of that. What I think is much more likely is that because these sorts of things usually never amount to any disciplinary proceedings much less instances of public discipline, this just continues to be something that many lawyers do either on the basis that the risk is minimal compared to the perceived reward or on the basis that they don’t see any risk at all.
For some lawyers, it is the misunderstanding about how confidentiality functions that can be the problem as they either aren’t aware (or simply don’t care) about the counter-intuitive fact that a public jury verdict is still RPC 1.6 confidential information as far as the lawyer is concerned. Those transgressions can likely be forgiven by most, if not all, involved. But, particularly when the self-congratulatory efforts in question go beyond just providing information about a jury verdict and also opt to reveal information about pre-trial settlement negotiations, the egregious nature of the breach of confidentiality is nearly impossible to forgive. And, thanks to the way the Internet works, it is certainly impossible to forget.
Just this week, I saw one of these posts from lawyers with whom I use to practice law blowing their own horn about a very large jury verdict and revealing what the settlement offer from the defense was before trial. I hope that they were operating with the consent of their clients or, if they happen to be reading this, that they go and at least get retroactive consent from the client involved which is better than having never gotten consent at all.
As if the risk of discipline (even if perceived to be a small risk) wasn’t enough to discourage lawyers from self-congratulatory social media postings (and if you spend any time on social media you know that it isn’t enough to discourage most), the Nevada Supreme Court provides a new opinion in a piece of defamation litigation that ought to give lawyers another reason to think very, very carefully about blowing their own horn online.
In Patin v. Lee, the Nevada Supreme Court rejected the effort of a lawyer and a law firm to stop a defamation case brought against them by a dentist. The dentist had been one of the opposing parties of the firm’s client in a dental malpractice case. The lawyer and law firm tried through exercise of an anti-SLAPP motion to bring the defamation case to a quick end. They were unsuccessful though as Nevada adopted California’s approach to determining whether something written online can be considered “in direct connection with an issue under consideration by a judicial body.” If you aren’t familiar with the general concept of anti-SLAPP statutes, then such language is likely meaningless to you. But, if you read the opinion it will give you a pretty efficient primer on the concept of anti-SLAPP statutes (SLAPP being an acronym for Strategic Lawsuits Against Public Participation). You can read that opinion right here
From a loss prevention standpoint, let me drill down on what is readily understandable in terms of the problematic conduct by the lawyer and law firm. The lawyer represented a plaintiff in a dental malpractice lawsuit against three defendants – a dental group and two individual dentists. The lawyer obtained a $3.4 million verdict in favor of the client against the dental group and one of the two individual dentists. The jury verdict against the other dentist was one finding no liability.
There was some appellate wrangling in the malpractice case after the jury verdict but because the ultimate outcome on appeal did not change, that wrangling matters much less than what the lawyer and law firm decided to post on their website to tout their success in the case:
DENTAL MALPRACTICE/WRONGFUL DEATH – PLAINTIFF’S VERDICT $3.4M, 2014 Description; Singletary v. Ton Vinh Lee, DDS et al.
A dental malpractice-based wrongful death action that arose out of the death of Decedent Reginald Singletary following the extraction of the No. 32 wisdom tooth by Defendants on or about April 16, 2011. Plaintiff sued the dental office, Summerlin Smiles, the owner, Ton Vinh Lee, DDS, and the treating dentists, Florida Traivai, DMD and Jai Park, DDS, on behalf of the Estate, herself and minor son.
The problem with this self-congratulatory post on the firm’s website — separate and apart from the normal questions that might be asked about whether the clients were consulted and consented before the post was made — is that it doesn’t mention that Dr. Lee — the person named in the caption headline and in the body of the update — was the individual dentist found by the jury to have no liability. That dentist, in turn, is who sued the lawyer and law firm for defamation because a reader of the post in question would reasonably think that Dr. Lee had been on the wrong end of a $3.4 million jury verdict.
Those that know me know that I am not much for dropping Bible quotes but, even I have to say that this would be a pretty good place to drop Proverbs 27:2 – “Let another praise you, and not your own mouth….”