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Can attorneys create “positional conflicts” with online posts?

In the current legal marketplace, law blogs, Twitter feeds, Facebook accounts, and all other manner of online posts have become common promotional tools for attorneys. As more and more attorneys have gone online in the last decade, ethics committees across the country have released both formal and informal opinions relating to the topic.

The District of Columbia (D.C.) Bar’s ethics committee recently issued an opinion to imply that an attorney who blogs or tweets about legal developments could inadvertently create a conflict with a client’s interests based upon the information the attorney posts online.

These ostensible “positional” conflicts would arise when an attorney takes one position in his or her online posting regarding a questionable legal issue, but is required to argue the opposite on a client’s behalf.

In the opinion, the D.C. ethics committee points to D.C.’s Rule 1.7 which prohibits an attorney from representing a client if the “lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by… the lawyer’s own financial, property or personal interests.”

Missouri’s corresponding Rule 4-1.7 regarding Conflicts of Interest with Current Clients states that a conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by… a personal interest of the lawyer.”

Comment [24] to the Missouri rule also states that “a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients.” The Comment goes on to note that the potential that advocating a position for one client could create precedent which would be adverse to the interest of another client in an unrelated matter does not, in and of itself, create a conflict of interest.

Based upon this language from the Missouri rule, it is unlikely that an actual “positional” conflict of the nature discussed in the D.C. opinion would pop up for a Missouri attorney from blogging or tweeting alone.

Nevertheless, the notion of such a conflict arising between attorney and client based on an attorney’s online presence has been a matter of discussion among legal professionals for some time.

The loose consensus between these professionals seems to be that the potential danger is not necessarily of creating a direct conflict of interest between the attorney’s professional judgment and the client’s interest, but lies instead in putting the attorney in a position where his or her reputational interests could be on the line.

A timely example would be a hypothetical attorney who made a post containing a constitutional analysis of Missouri’s recently passed Voter ID requirement and determining that the new law was constitutional. While that attorney would likely not be ethically foreclosed from representing a voter seeking to challenge the constitutionality of the law, the attorney should consider whether, under the language of Rule 4-1.7a)(2) there is a significant risk that his or her publicly stated personal position (i.e his or her personal interest in the validity of the position taken on the law) could materially limit the representation.

In this situation, there is not a hard conflict under the rules, but there is the potential for this to become a public relations issue for the attorney.

There may also be a client relations issue to be addressed. Whether or not certain clients hire an attorney or continue to use an attorney’s services can certainly be impacted by the types of online posts an attorney makes, particularly if those posts relate to hot-button issues. This should always be in an attorney’s mind when cultivating an online presence.

From a practical point of view, this D.C. ethics opinion and the numerous other opinions throughout the country which address the ethical implications of an attorney’s online presence clearly demonstrate how essential it is for law firms to have explicit and thorough social media policies. These policies should be enforced relating to online content posted not only by the attorneys in the office, but by all staff members and employees as well.

This is just as true for small firms and solo practitioners as for larger firms in major metropolitan areas.

Think about how damaging an off-the-cuff Facebook post made by a paralegal could be to a solo practitioner’s business if that post offended a major portion of the small town in which the practice was situated.

Important things to remember when crafting a law firm social media policy are the duties of confidentiality, the requirements of the rules of professional conduct related to attorney advertising, and the potential exposure to unintended clients or accidental conflict of interest violations if the attorney engages in a discussion with individuals in the comment section.

Attorneys and law firm staff should also be careful to avoid interacting with a represented opposing party online.

Another key takeaway from the D.C. opinion and others like it is the value of disclosure to clients and potential clients of any online legal position which could be adverse to their interests.

A positional conflict the nature of which the D.C. ethics committee suggests, even if it did exist, would still be one that could be waived by the client. Therefore, the proper actions to take to avoid future claims of conflict would be to disclose the attorney’s personal and reputational interest arising from any relevant online content and obtain the client’s consent to the representation with a conflict waiver.

This might seem like overkill given the nebulous nature of such a conflict claim, but defending against any allegation of impropriety, regardless of merit, is always easier with proper documentation.

The most vital lesson from this D.C. opinion is that ethical issues arising from web technology will continue to shift and change alongside the technology itself. Attorneys would be wise to keep abreast of these developments and alter firm policies and procedures accordingly.

dunn-whitneyWhittney Dunn is a risk manager for The Bar Plan. She can be reached at 314-288-1071 or wadunn@thebarplan.com.

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