These are the hypothetical scenarios I used to facilitate discussion
of the ethics of social media and email at the
2023 Cal-APABA Conference.
- The Email
- The Investigation
- The Lifeline
- The Big Win
- The Complaint
The hypos came from an earlier presentation on the same subject.
The original presentation slides are [here]](https://goo.gl/mQrrbx).
The overarching principles and authorities are:
An attorney must maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. (Bus. Prof. Code, § 6068(e)(1); Rules of Professional Conduct, rule 1.6.)
A communication that offers legal services cannot be false, misleading, or confusing, and must indicate clearly that it is an offer for legal services. (Rules of Professional Conduct, rules 7.1, 7.3.)
An attorney must ensure staff meets ethical standards. (Rules of Professional Conduct, rule 5.3.)
After the hearing mom goes online to complain about attorney She posts to various review sites and social media She alleges the attorney used the email she sent against her She says the attorney never disclosed representation of dad Attorney responds on each site, “I deny all these allegations” Paralegal replies on Facebook, “Didn’t use your lies about exchanges!” Questions Is attorney’s denial unethical? Is paralegal’s post unethical?...
Paralegal posts to personal Facebook:
Boss got a big win! Drinks on us!
Attorney tweets (Xes?):
Another dad gets his rights! Who wants to be next?
Attorney posts LinkedIn article:
California law finally understands that smoking pot is not child abuse
On firm’s blog, attorney writes:
Groundbreaking case in our favor. Email us for details.
Questions Is paralegal’s Facebook post a solicitation?...
Dad tells attorney that he used to have medical marijuana card Dad has let it lapse because of new laws Dad wants to know how the lapse might affect custody Attorney posts details to matrimonial lawyers listserv, asking for input Question Can attorney post details on listserv?
Mom hires a different lawyer Dad’s lawyer and paralegal capture mom’s social media postings To get the good stuff, paralegal sends a friend request to mom Paralegal does not identify himself as attorney’s paralegal Dad’s attorney does not inform opposing counsel Questions Can attorney monitor mom’s social media? Can paralegal friend mom?
Paralegal receives unsolicited email from potential client (mom)? Mom describes custody/visitation dispute Email describes what happens during exchanges After finishing email, paralegal realizes dad is a current client Questions Does the attorney owe a duty of confidentiality to mom? Should the attorney tell mom? What if mom has a lawyer? Should the attorney resign from representing dad?