Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age

Class Nine
October 24, 2017
“Oh no, Uh oh, and Oops:  The Perils of Social Media are Worth Tweeting and Blogging About”


Mindy’s practice has become increasingly focused in the criminal defense arena. She spends the vast majority of her time doing criminal defense work, having become a leader in the defense bar and an adjunct law professor teaching “Police Practices and Criminal Procedure.” Having gone solo and done a lot of her own marketing using the Internet, Mindy has become quite comfortable using social media both for personal and professional purposes.

Mindy starts to use Twitter as a marketing tool and tweets about interesting cases and issues in criminal law. At least once a day
she tweets about some piece of relevant legal news, occasionally alluding to some of the issues she comes across in her practice. Her tweets range from substantive comments such as

“new int’l flight travel rules come close to violating civil liberties, but don’t cross const’l line . . . yet”

to, when times become a little lean, advertising her services with :

“Superb criminal defense attorney. Competitive rates for felonies” to case specific comments like: “Client G. may be giving me the runaround.  Very frustrating.”

When one of her cases comes before Judge Ono, Mindy becomes concerned that the challenges of criminal defense work might be elevated to a new level.  She has heard that Judge Ono has a reputation of making unfair rulings that seemed to come out of left field, leaving both prosecution and defense scratching their heads. One day, while appearing before the court on a preliminary matter, Mindy is certain that Judge Ono has violated her client’s constitutional rights. Mindy requests a sidebar and explains what she believes to be unfair about the ruling. Even though the prosecutor nods in agreement, Judge Ono will have none of it and threatens Mindy with contempt if she doesn’t “back off.”

Mindy spends the afternoon and better part of the evening discussing the day’s events with her Pedro and her other colleagues, both at the bar and in the law school. They applaud her decision to file a motion to reconsider. 

When Judge Ono summarily rejects the motion, Mindy has had enough. Not only is her client being denied due process, but also the Judge surely is mistreating others as well.  To Mindy, this conduct threatens the integrity of our system of justice.

Mindy is familiar with an un-moderated lawyer’s blog that serves as a clearinghouse for comments about local judges.  The blog has a large following and Mindy feels it is important that she comment on Judge Ono’s conduct. 

She writes:

“Oh no. It’s Ono.

Judge Ono has gone too far this time and I feel it’s my public duty to explain his outrageous, improper, and uneducated conduct.  I am so outraged on behalf of my client, my community, and the system of justice that I’d go so far as to say Judge Ono has lost his mind. I truly believe this, so perhaps someone close to him can look into this. Without question Judge Ono has deprived my client of his constitutional rights and is on the verge of perverting the system of justice. What makes this most tragic is that Judge Ono just started a six-year stint on the bench so the damage is just beginning. If you can’t tell, I am fuming. Please let’s band together so that this lunatic can be removed from the bench and justice will again be served in our community.”

When she submits the post, Mindy has the option of leaving it anonymous, but feels it is important to sign the blog. As a professor she is a big believer in free speech and also in the protection afforded by academic freedom.  She knows she may take some heat, but feels strongly in the right for an accused to be confronted with his accuser (even though she has lost all respect for Judge Ono) and also wants others to be able to contact her.  After she posted the blog, she tweets,

“Judge Ono made a terrible ruling today in State v. Dawson, ignoring the constitution and all common sense.”

Questions

Please answer concisely, but completely and include references to the applicable Rules of Professional Conduct, Ethics Opinions and the assigned reading.

1. How may the legal ethics rules restrict a lawyer’s First Amendment rights?

2. Do you think that Sean Conway should have been reprimanded for criticizing the judge in his blog post?

3. Why do you think “selfie sabotage” and other social media misteps occur and what are some best practices for avoiding ethical and professional landmines on social media?