Disclosing client information on Facebook has gotten yet another lawyer in trouble. A Massachusetts attorney was publicly reprimanded earlier this month for posting details of a guardianship case on the social media site, in violation of the Bay State’s version of Model Rule 1.6 (“Confidentiality of Information”). The Board imposed a public reprimand, rejecting an argument that the only people who would have recognized the case from the information posted were the parties themselves. The case highlights the risk of posting even information you have tried to anonymize.
“Back in the Boston office …”
After representing his client at a hearing in juvenile court, the lawyer (a member of the bar since 1977) posted on his personal Facebook page, which was public and had no privacy setting:
I am back in the Boston office after appearing in Berkshire Juvenile Court in Pittsfield on behalf of a grandmother who was seeking guardianship of her six year old grandson and was opposed by DCF [i.e., Department of Children and Families] yesterday. Next date — 10/23.
Two people responded to the post. A Massachusetts lawyer who was a FB friend asked, “What were the grounds for opposing?” The lawyer answered, “GM [i.e. grandmother] will not be able to control her daughter, the biological mother, and DCF has concerns.” The friend responded (sarcastically), “DCF does have a sterling record of controlling children and questionable mothers, after all.” The lawyer replied, “Indeed.”
A second FB friend, this one a non-lawyer, also responded: “So what’s the preference … Foster care? What am I missing here?” The lawyer answered:
The grandson is in his fourth placement in foster care since his removal from GM’s residence in late July. I will discover what DCF is doing or not doing as to why DCF opposes the GM as guardian. More to come.
Within a couple months, the lawyer’s client learned from her daughter about the lawyer’s FB post. She later complained to him and eventually to disciplinary authorities.
Connecting the dots?
The lower hearing committee recommended dismissing the disciplinary case, concluding that the FB post couldn’t reasonably be linked to the client, and therefore there was no confidentiality violation under Rule 1.6. But the Board rejected that conclusion, because the post disclosed sufficient information to make it clear to the client’s daughter that the post referred to her mother. That belied the notion that no one could identify the case and learn confidential information from the post.
“Even if there were no evidence that a third party actually recognized the client in the post,” said the Board, “we would still conclude that the respondent had violated Rule 1.6(a). There is no requirement that a third party actually connect the dots.” Rather, the Board ruled, it was enough if it were “reasonably likely that a third party could do so.”
This was no mere hypothetical, or “shop talk” among lawyers the Board said. The lawyer’s FB post did not seek advice from other lawyers, in the Board’s view, or have “any other purpose that would have served his fiduciary duty to his client.” Rather, he violated the duty to “jealously guard … client secrets.”
The lawyer in this case had apparently practiced for 42 years without any other disciplinary history. The Board brushed off his lack of previous discipline and said it was entitled to no mitigating weight. Instead, the Board regarded the lawyer’s long experience as an aggravating factor, since “he should understand the importance of protecting client confidences.”
Be careful out there
Do we need to say it again? Don’t even get close to talking about the specifics of your clients’ matters on social media. Even if you try to disguise identities and details, that might not be enough to keep you out of trouble.