Today, we spend a few more minutes addressing a topic that will likely be a rich vein of discussion for years to come or for at least for as long as lawyers continue to be human beings whichever is shorter. (Even with this news, you figure we have a few years left before we have all been replaced by Watsons in suits.)
In 2015, human beings have handy access to essentially all of the world’s aggregated information and knowledge in our pocket – which is pretty awesome even if it reduces the fun of conversations where memories differ over some unimportant pop culture reference by ending the debate quickly when someone say “Well, let me just look that up real quick…” Unfortunately, along with the upside of the wealth of information available in our pocket, we all have the ability in the heat of a moment to communicate with damn near the whole world at a moment’s notice. If this were a commercial for a particular discount insurance company, we’d phrase this as “If you are a human being with internet access, you overshare. It’s what you do.”
Lawyers are, of course, despite much rhetoric human beings. But, lawyers more than many other forms of human being are going to continually have to strive to not do things on the web out of impulse or continue to learn the rough lesson that it will not turn out well. This is particularly true when it comes to posting anything that touches on information related to representation of clients. I’ve written about an instance of misjudgment of this variety here.
The latest instance involves a Denver lawyer who will serve an 18-month suspension for deciding to respond in kind to clients who had criticized his services online. This lawyer did this not once but twice. One instance involved folks who he felt were not living up to their financial obligations to him — obligations that weren’t really well detailed in writing — and who criticized him online after he gave them 48 hours to pay or see him withdraw and who refused to refund $200 paid for a filing fee when he didn’t file anything. After they criticized him online, he responded by “shaming” them with online disclosures of privileged and confidential communications. As to another client, after they fired him, they posted unfavorable comments about him on the Better Business Bureau’s website. He again responded by posting embarrassing confidential information about them online.
Now, if you read the details of the conditional admission document imposing this suspension you will see that attempting to “shame” his clients online was but one of many, many instances of problematic conduct in which this lawyer engaged. So it is difficult to conclude that the penchant for flouting his obligations of client confidentiality under RPC 1.6 and RPC 1.9 alone would have gotten him to such a lengthy suspension as the outcome. But those errors can still be another teachable moment for other lawyers for whom the call to take arms on the internet might be their only misstep.
If a client fails to pay your bill, or goes online and unfairly criticizes you (at least you think it is unfair), and you think doing something like complaining about them online and sharing information about what bad people they are is a good idea, you’re probably wrong about that. And, if you are probably wrong about that, then you might also be wrong about whether that information your client/former client posted was unfair to you. Either way though, instead of firing off your response online you’d be much better served searching up your state’s version of RPC 1.6 and RPC 1.9 and seeing if you really have any leg to stand on in trying to disclose your client’s confidential information.
If your state has a rule patterned after Model Rule 1.6, you are going to notice that it could be tough sledding. You are going to have to show that what you are doing, under 1.6(b)(5) is establishing “a claim or defense on [your behalf] in a controversy between the lawyer and the client.” And, even if you are able to conclude that an online flame war is the kind of “controversy” contemplated, then you are going to need to realize that your ability to disclose is still limited to what you can “reasonably believe necessary” to establish that claim or defense.
And, if you have gotten this far into this post and are among the small number of human beings unfamiliar with the concept of cat-shaming online, it looks much like this: