By G. Michael Witte ׀ Executive Director, Disciplinary Commission
If you use social media, are you attentive to what others post on your page? If someone should post a message or link that is vulgar, racially callous, intimidating, or misogynistic, do you tacitly own it if you do not remove it?
Several social media platforms (Facebook, Twitter, etc.) allow others to post public comments on a lawyer’s home page. Unfortunately, there may not be immediate safeguards in place to block an unwanted post when it is first posted, but the undesirable post might be a violation of the Indiana Rules of Professional Conduct. Should the lawyer be responsible for the content? After all, the lawyer didn’t write it.
Lawyer speech is regulated in many ways under the Rules of Professional Conduct. For example, legal advertising or statements on judicial integrity. Social media outlets serve lawyers and law offices as outreach platforms. It naturally follows that their speech on those platforms is subject to regulation.
In re Anonymous, 6 N.E.3d 903, (Ind. 2014) established that if a lawyer is linked to a third-party promotional website which contains communications that violate the Rules of Professional Conduct, then the lawyer is vicariously liable for the improper statement. Rule 8.4(a) states that “[i]t is professional misconduct for a lawyer to…violate or attempt to violate the Rules of Professional Conduct…through the acts of another.” Adopting violative posts of others on a lawyer’s public social media account can violate many lawyer ethics rules.
The Disciplinary Commission recently issued Formal Advisory Opinion #1-20. The advisory opinion identifies several minefields where third-party social media posts on a host-lawyer’s personal page can lead to trouble for the lawyer. A third-party testimonial statement that is likely to create a client’s unjustified expectation can violate Rule 7.1. An example of this violation could be, “Lawyer X got me a one million dollar settlement, and she’ll get one for you, too.”
Lawyers are strictly limited in touting themselves as “specialists.” A third-party post that claims the host lawyer to be a “specialist” in an area of law can violate Rule 7.4.
A lawyer might adopt an insensitive third-party post on the lawyer’s host site by supportively responding to or “liking” it. This can lead to several ethical violations for the lawyer. A crude, gender-related post not authored by the lawyer, but to which the lawyer responds positively or reposts, could serve as the basis for a bias and discrimination violation of Rule 8.4(g).
A problem particular for prosecutors is a third-party post on a prosecutor’s public social media account that places a substantial likelihood of heightening public condemnation upon a criminally accused person. Third-party posts, such as “fry him,” “hope he dies in jail,” or “forget the trial, she’s guilty,” are all indicative of public condemnation before trial and negatively impact the accused’s due process rights. Prosecutors should be sensitive to what the public is posting on their accessible websites and avoid violations of Rules 3.6 and 3.8.
These examples are not an exhaustive list. Lawyers must be proactive in amending, removing, and blocking ethically violative third-party posts from their public social media pages. Disciplinary Commission Formal Advisory Opinion #1-20 (archived at https://perma.cc/8F26-8QY5) can provide additional guidance.