There was recently an article about a lawyer that got chastised by a judge for posting a selfie with a client on social media after obtaining a not guilty verdict in a murder case. And although I fully understand the cause for celebration, it brings up an issue that I have grappled with for some time: When do lawyers cross the line of self promoting at the expense of their client?
In the last couple of months, I spoke at an ethics seminar. Before doing so, I called the Florida Bar to ask some questions relating to ethics, social media and websites. I asked the Florida Bar about listing representations of specific clients and outcomes in their cases on either a website or social media. The bar reminded me of a rule that I think makes sense: It is the duty of confidentiality with our clients. And that rule applies regardless of whether the client’s case is in a public record or all over the media.
As a lawyer in Florida, we still owe the client a duty of confidentiality. You must refrain from talking or promoting your representation of a specific client in any way unless you obtain permission from the client. Therefore, posting that you represented Mr. X and just obtained an NG in his case, without his consent, would be in violation of the Florida Bar rules. A posting of a picture with you and Mr. X would be the same violation. Now, I can’t speak to the bar rules in other jurisdictions, but I assume there are similar rules relating to a duty of confidentiality.
And in spite of the bar rules on this topic, I have always been bothered about the notion of discussing the representation of a specific client to others, on a website, or public forum, even pre-social media. I understand the desire to self-promote. I have even posted articles about how women need to learn to boast and brag more. But I think you can do that without violating the trust of a client.
I think it is fair game to post: OBTAINED A NOT GUILTY TODAY IN A MURDER CASE FOR A WELL DESERVING CLIENT. GREAT DAY FOR JUSTICE! There is nothing worrisome about that post. But when we participate in adding to the public humiliation and shame of our clients by continuing to perpetuate that there was a charge and a trial, I do believe that we violate the trust that has been placed in us.
Obtaining a client’s consent certainly resolves the ethical issues that may exist from a bar standpoint, but does it totally resolve our ethical obligation to our client? Should a client even have to be in a position of deciding whether to grant permission to publically share their charges, the facts of their case, and the result obtained? I personally don’t think so.
Without question, you can publicly share your successes and should — but do so without violating the trust that a client places in you. Would you want the fact that you saw a doctor and were diagnosed with cancer but that she saved your life posted on social media? Of course HIPAA protects against that, but don’t you think it would make sense that we owe the same kind of confidentiality to our clients considering the seriousness of the accusations involved?