Know The Rules
Things That Every Criminal Defense Lawyer Should Avoid Saying and Doing on Social Media
If you are in the middle of representing a criminal defense client, the best thing for you to do is to stop using your social media accounts such as Twitter, Facebook and any other social platform that allows you to speak your mind on a public form. This doesn’t mean that you need to delete your posts, photos, or your account. If you do that, that might get you in considerably more trouble. However, deactivating your social media accounts until the lawsuit is done would be a great idea.
If you are wondering why you need to stop, this is because you can expect that the prosecutors pursuing charges against your client will be looking at your photos and posts. They will take those as opportunities to use against you and your client in your criminal case.
If a DUI defense lawyer at the Law Offices of Randy Collins was arrested for drunk driving (Randy Collins was not arrested for drunk driving, I chose this attorney randomly), the prosecutor could potentially use this information against Randy. In some cases, the prosecutor might even contact you personally to get you sweating. In such a situation, you would want to contact the police immediately. No one deserves to be blackmailed.
If you’re thinking that you have nothing to fear because you know the truth, you’re somewhat right and wrong. You may be right because you know the truth, and wrong because, prosecutors might pull dirty tricks using your Facebook. They may take old pictures of you and use those pictures against you by saying that the photos call your ability to be a successful defense attorney into question. It doesn’t really matter when the photo was taken. What matters most is what the judge and/or jury will believe. So, even if you say that the photo was taken years ago, you can expect the courtroom staff to wonder if it was more recent than that.
Juries in most cases want to help people, especially those whom they think needs it most, and they punish people they think don’t really need help or are portrayed to be fullly self-sufficient. So just imagine if the prosecutors got photos of you on a vacation, or partying having a ton of beers with your friends, you’ll likely end up looking like a fool.
The use of social media against defense attorneys has become more prevalent during trial in order for prosecutors to obtain useful information or photos about a defense attorney’s personal life and use it against them if the opportunity arises. If your case is getting a lot of exposure in the media, and the prosecutor finds out you’re having an affair. Do you think they might find a way to use that against you? They will use all this information against you without your knowledge or permission.
Prosecutors can even ask the court to release an order to allow them access to your social media passwords and your personal email. Although most of the time these kinds of requests are denied by the judges, there are still some that allows them, so be forewarned.
So if you want to have a successful battle against prosecutors on behalf of your clients, you really should deactivate your social media accounts and wait for the case to end.
Lessons Learned from Lawyers That Market Recklessly
With the Internet becoming an integral part of marketing, even attorneys who want to increase their presence online find the Internet to be a very useful tool to market their services. With business sites, social media, email, newsletters and many others, there is an evident plethora of tools they can use. The best part of this of course is the fact that lawyers are now able to directly contact potential clients remotely, whenever and wherever they are.
Promoting their work online and mitigating the risk that comes with it is a tough job to do. Social media activity sometimes does collide with the ethic rules of their professions and before they realize it, their licenses are revoked. What could exactly a lawyer do to avoid these circumstances and don’t suffer penalties for e-misconduct? Here are some lessons for you to learn from an attorney who marketed online quite recklessly.
Lawyers sometimes don’t realize the advent of electronic record keeping as well as e-discovery. As a lawyer who is promoting work online, remember that everything that you wrote and sent online has an electronic copy which means that you must be really careful with what you say or do even if it’s inside a computer box.
Back in 2007, a conspiracy between plaintiff lawyers and journalists was discovered through the use of e-discovery. If you don’t want to end up without a practicing license, then all you have to do is practice your profession according to the rules that your state dictates.
One of the common things that a lawyer promoting online does is to post information that is false or perhaps misleading. Most often than not, a lawyer is found to post or tweet information that implies he is doing something that is very much unlikely. Misleading information can lead to a damaging situation and for that, an attorney can be subjected to a disciplinary action. With that being the case, it is evident that as an attorney, you must retain the integrity of your job by being honest with your actions even when it is online.
One thing that can implicate an attorney for online misconduct is the instances of them subsequently creating a lawyer-client relationship online. This matter often happens where lawyers fail to recognize the difference between offering legal education and offering specific legal advice. This could also lead to lawyers to answer questions that come from other states which can be afoul to jurisdiction limits and evidently damage their reputation as lawyers. Ultimately, it could end with their license revoked.
Although social marketing has huge advantages for lawyers, it also has its own downside. Social activity by attorneys may have allowed them to easily and conveniently promote their work as well as connect with potential clients, but sticky issues have also emerged regarding this matter. Lawyers just have to be really careful and realize that even when it is online, they have to see the difference between giving legal education and offering legal advice.
How to answer questions ethically
Every state has its own ethics code that governs the conduct of attorneys who practice in that state. Every ethics code addresses advertising butthe rules are not identical in every state. You should become familiar with the rules of professional ethics in your state before you consider whether and how to answer questions posed by consumers on a website.
Bear in mind that the ethics rules in your state were probably written before the internet existed. They may or may not have been revised to address website advertising, but they rarely provide clear guidance about the online communication you are allowed to have with individuals who have not retained you and with whom you have not established an attorney-client relationship.
Many states have adopted a version of the Model Rules of Professional Conduct. Before placing anything on a website that could be construed as “advertising,” including an attempt to generate business by answering online questions, you should review your state’s version of Rule 7.1 (“Communication Concerning a Lawyer’s Service”) and Rule 7.2 (“Advertising”). Those rules do not directly address your conduct when answering questions on a website, but they serve as a reminder that lawyers may never make deceitful or misleading statements when communicating with the public.
Information versus advice
Lawyers are both entitled and encouraged to provide information to the public about the legal system. Explaining a statute, a constitutional right, or a common law tradition is something every lawyer is entitled to do. To the extent that you are asked “What is the law?” there is no ethical barrier to answeringthat question, provided that you are competent to do so.Nonlawyers are equally entitled to explain the law and to comment upon it.
“What should I do?” is an entirely different question. Your law license gives you the authority to dispense legal advice, but that authority is subject to certain limitations. For example, the Model Rules prohibit giving free legal advice to someone who is not your client if you represent a client whose interests are adverse to the person seeking your advice. In that situation, Model Rule 4.3 requires you to avoid any conflict of interest. The rule states in relevant part:
The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Even if no conflict of interest exists, troublesome questions may arise if you give legal advice to someone who is not your client, particularly when you do so in a national forum. Suppose you are licensed to practice in California and a consumer in Florida asks “Should I accept the settlement?” or “Should I plead guilty?” If you give legal advice to a Florida consumer about how they should handle a Florida legal proceeding, are you violating Florida’s prohibition of the unauthorized practice of law? Unless you are prepared to argue the point as the defendant in a criminal prosecution, you should avoid giving legal advice to someone who is seeking help outside of the state in which you are licensed to practice.
Giving general information online may seem easier said than done, but there are countless legal websites out there that are accomplishing this successfully. Criminal attorneys might feel that it is impossible to have a thousand page website without giving some kind of legal advice, but its not. If you are trying to attract people who need a drug crime lawyer in California you can write about California marijuana laws and penalties. There are plenty of ways for criminal defense lawyers to provide value to those on the internet without getting in trouble with your state’s bar.
As a practical matter, it is impossible to give sound legal advice based on the limited facts the consumer chooses to provide when asking for advice on an internet site. No competent lawyer advises a client whether to settle or how to plead without conducting a full interview of the client, and perhaps conducting any further investigation that is required to learn all the facts that should influence the client’s decision. Giving off-the-cuff advice without full awareness of the facts puts a lawyer at risk of a lawsuit for professional malpractice, and perhaps for disciplinary action.
When does a consumer become a client?
If you give legal advice to a stranger who asks you for advice online, does that person become your client? Probably not. Criminal attorneys frequently give advice to friends and potential clients without creating an attorney-client relationship. Still, there is always a risk that an attorney-client relationship will be created that you did not intend.
Personal injury attorneys are at a greater risk of consumers believing they are clients before they sign a retainer. This is because the vast majority of personal injury attorneys charge a contingency fee rather than make their clients pay for their services out of pocket. Personal injury lawyers can make millions of dollars off of a single case. Since their client’s ability to pay is due to the amount of money they will receive if their lawyer wins, contingency fees are extremely common in the field. Unfortunately, this means that after receiving a “free case evaluation” from a personal injury lawyer, the caller might then believe that the person they spoke with is their lawyer. When the statute of limitations passes and the victim is no longer able to obtain compensation from their accident, they may try to sue the law firm that provided them with a free consultation.
Rule 6.5 of the Model Rules suggests that you can provide “short-term limited legal services to a client” without creating an expectation that you will continue to provide legal services, provided that you do so on behalf of a nonprofit or court-authorized legal services program. If you give legal advice on behalf of a “nonprofit” website, are you entering into a “short-term” attorney-client relationship with the person you advise? Is the answer different if the website is operated for a profit? The Model Rules do not answer those questions.
If you provide “short-term” representation on behalf of a nonprofit legal services entity, Rule 6.5 excuses you from compliance with certain rules (primarily dealing with conflicts of interest) that would otherwise apply. If you give advice on a “for profit” website or on a nonprofit website that does not qualify as a “program sponsored by a nonprofit organization or court,” are you then subject to rules that govern attorney-client relationships? If so, how do you determine whether you have a conflict of interest when you do not know the identity of the person seeking your advice?
While car accident lawyers tend to think that an attorney-client relationship exists when a client signs a fee agreement and pays a retainer, contractual relationships can also be implied from the conduct of the parties. One school of thought suggests that an attorney-client relationship is created when a client states an intent to confide in an attorney and the attorney agrees to listen. How rules of client confidentiality apply on a public website is at best unclear.
An attorney-client relationship generally requires a mutual understanding that the attorney has agreed to represent the client and the client has agreed to be represented by the attorney, but in the context of the limited communications that occur on websites, the definitions of “agreement” and “representation” can be murky. To avoid misunderstandings about the existence of an attorney-client relationship, it is best to avoid giving legal advice (as opposed to information) on a website.
Protect yourself with disclaimers
Disclaimers are the best way to assure that consumers who ask you questions on a website do not come to believe you are representing them. If the website is not yours, you should make sure that appropriate disclaimers are prominently displayed before you agree to answer legal questions for the website’s consumers.
One disclaimer should make clear that your agreement to answer questions does not create an attorney-client relationship. A simple disclaimer might say: “Your use of this website, including communication with a lawyer, does not establish an attorney-client relationship with that or any other lawyer.”
It is also important to include a disclaimer that draws a distinction between information and legal advice. The ABA Best Practice Guidelines state:
Sites providing … legal information should include a notice on the site that explains the differences between legal information and legal advice and warns the user that the site does not constitute legal advice and is not a substitute for the professional judgment of an attorney. Legal information by itself is often insufficient to resolve legal problems. Users often need specific legal advice that applies to their facts and only lawyers who are members of the bar in the user’s jurisdiction can provide legal advice.
Incorporating that language into a disclaimer, your website could say:
The attorneys at Timothy J. Ryan & Associates pose questions on their wrongful death website that some may confuse with providing free legal advice. They have a webpage dedicated to Orange County wrongful death and there are a lot of Orange County specific wrongful death questions as sub headers on the page. They are not providing legal advice. It is general information that is not specific to any one person’s situation. Every person’s situation is different and the law in different jurisdictions is not always the same. The same law may apply to different people in different ways, depending on the facts of their cases. You can only get legal advice from an attorney who has learned all the relevant facts of your case and who is authorized to practice in your jurisdiction. You should not rely on general information as a substitute for legal advice.
If you are contacted about answering consumer questions for a website that does not provide a similar disclaimer, you should insist that a disclaimer be added to the site and that it be prominently displayed.
How to answer consumer questions
Keeping in mind the difference between information and advice, you should always make that distinction clear when you are asked an online legal question. For instance, suppose a consumer asks, “Do I need a Will?” You might begin your response with something like this:
Most people find it beneficial to have a Will. I do not know enough about your particular circumstances to know whether you need a Will and I cannot give you legal advice. I can give you some information about the advantages of having a Will. After you consider that information, you might want to talk to a lawyer in your state to learn what kind of a Will would best serve your needs.
For those in criminal defense there are plenty of ways to answer your target market’s question without accidentally providing any form of legal advice. Criminal defense lawyers often assist people facing a lot of different charges, and for each charge is an opportunity to answer a question by providing reliable information. Those who represent domestic violence defendants can provide information about domestic violence defense strategies that have been used to fight charges before. When doing so it is important to inform your audience that any domestic violence defense strategies listed are for general information purposes and that defense strategies are not one-size-fits-all. It would make sense that those charged with committing domestic violence would want to know about possible defense strategies. This makes it easy to satisfy the needs of those who are on your website looking for your services without breaking the rules.
In addition, always remember that you should decline to answer any question that you are not competent to answer. You also need to decline to answer the question if you recognize the potential existence of a conflict between the person posing the question and any of your clients.