Ethics and the Law: Safe Not Sorry - By Robert Pelton

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Tuesday, April 30th, 2019

Who among us has been interrogated by their 4-year-old child or grandchild about what lawyers do? Unfortunately, we do not make our living playing Pet Bingo, Llama Spit Spit, or Toca Kitchen on a tablet. For most of us, at the end of the day, all of our time is spent TALKING, and our currency is information: Whether it be privileged, non-privileged, helpful, or harmful, we process A LOT of it. Gone are the days of Atticus Finch and Perry Mason. Simple letters couriered by the mailman and telephone calls from a land line and consultations only in the office are dead.

A lawyer’s duty to keep abreast of changes in the law includes keeping up with technology. To ethically represent your client, you must accept the challenge and do your best to keep up with all new technology advances. Like all evidence, it can cut both ways. The Instagram photo of Johnny at the local bar that supports your client’s mistaken identity defense can also put him behind bars for a revocation of his parole or probation. The late Racehorse Haynes often commented, “Texting means Trouble, and Email means Evidence.”

It is our job to get it through out client’s head that once they catch a case, their online persona and content is a field day—whether through Snapchat, Instagram, electronic surveillance, wiretap, text messages, or emails. You would think jail calls would be a no-brainer for Our Hero to keep his mouth shut. Always tell your hero not to talk about his case on jail calls. I heard a story of an inmate telling his sister what kind of pistol he used when he shot his wife 9 times while she was stopped at a red light. Coupled with the jailhouse snitch, the recorded phone calls can tag an extra 20 years on a case for the Defendant.

The Texas Rules of Professional Conduct are silent on the specific use of email to convey confidential information; instead, they focus not on the manner of the communication but on the content analysis of confidential information, as indicated in Rule 1.05 (a) (b) (c) (d).

Emails can lead to severe consequences, derailing people in all walks of life from Washington, D.C., on down to the City of Houston and on to infinity. And as harmful as they can be, you should be advised to memorialize events to create a timeline for a defense strategy. 

Social Media

We all know that an attorney has a duty to protect confidential client information, but it’s easy to forget that duty when posting on social media or responding to online reviews related to a lawyer’s services. The proper analysis under the Texas Disciplinary Rules of Professional Conduct will involve Rule 1.05, which generally defines the scope and extent of a lawyer’s duty to protect confidential client information.

Rule 1.05(a) broadly defines “confidential information” to include information protected by the lawyer-client privilege, as well as “all information relating to a client or furnished by the client” that a lawyer acquires during the course of or by reason of the representation. Rule 1.05(b) prohibits a lawyer from revealing confidential information of a client or former client absent an applicable exception—and also extends to the use of confidential information to the disadvantage of a client or former client.

For example, an attorney’s inclusion of information in a social media post that identifies a particular client, or which would allow a third party to do so, will generally be subject to the restrictions of Rule 1.05. These limitations will apply regardless of whether the communication is made in a public social media post or a social media post that is limited to friends and acquaintances of the lawyer.

The Professional Ethics Committee for the State Bar of Texas issued Ethics Opinion 662 (August 2016), related to an attorney’s duty of confidentiality in responding to a former client’s adverse comments on the internet, and Ethics Opinion 648 (April 2015), related to an attorney’s communication of confidential information by email. These provide useful analysis related to an attorney’s duty of confidentiality as related to electronic communications. See www.legalethicstexas.com. As always, the proper analysis will depend on the specific facts involved.

Many of us are caught on cameras about 70 times—in workplaces, shops, or other public places with surveillance cameras installed. Whether you are picking your nose or scratching yourself, it is probably on film. Many courthouses have cameras and audio recorders that can pick up conversations. Do not discuss your client’s case in elevators or areas where others are around. Do not take chances with social media postings, and remember you may be subjecting your law license to jeopardy if you do not follow the advertising rules. BE SAFE NOT SORRY.

If you are a Texas lawyer and have questions about your ethical obligations, you may contact the TCDLA Ethics Hotline at (512)646-2734 for guidance on how to access the relevant rules and information, including ethics opinions and caselaw, that may help you reach an informed decision. When the little 4-year-old asks what you do, you might want to say, “It depends.”

Thanks to Joseph Connors, Keith Hampton, Robyn Harlin, and Sharon Bass.