UNIVERSITY OF STO.

TOMAS
GRADUATE SCHOOL OF LAW
LEGAL AND JUDICIAL ETHICS

Name: Nadine Christine A. Diamante

Critique Paper on the Advisory Opinion

Rendered by the Los Angeles Bar Association
Professional Responsibility and Ethics Committee
Re: ETHICAL RISKS IN USING SOCIAL MEDIA

INTRODUCTION

Social media has provided a vast venue for users to consume and give

out all kinds of information. This process has become so convenient that we

seldom think about the implications of our actions. In the Philippines alone,

67% of online users use social media, proving how influential social media

is. However, as scholars of the law, lawyers should equip themselves with

precaution, to think before they type, more than anybody else online.

Regardless of a lawyer’s area of practice, the pervasive nature of social

media makes it a critical aspect of the attorney-client relationship in the age

of technology.

Several questions must be considered by a lawyer before posting

anything online. Will sharing this picture demean my reputation? Will this

tweet be prone to misinterpretation that will be damaging to my profession?

Will this private message divulge anything significant in relation to my case?

The use of social media has made it easy to cross the line outside

client-attorney privilege without being aware of it.

DISCUSSION

The Los Angeles County Bar Association discussed the facts as follows:

Attorney is active on an Internet site that licenses intelligent interacts

with different guests to the site. Attorney starts communicating through the
site with an Individual unknown to Attorney. Neither Attorney nor Individual

utilizes his real name. Attorney states that he is a litigator. Individual states

that Individual works in a non-legitimate limit in a non-lawful industry.

Attorney not mindful that Individual is really connected with the rival side of

a pending case in which Attorney speaks to Client and is "catfishing," i.e.,

expecting a false on-line personality to get data by guise.

Through their message exchange, Attorney enlightens Individual

concerning Attorney's up and coming interviews with Lay Witness and Expert

Witness, both of whom are potential observers in Client's issue. Attorney

imparts to Individual the general geographic area of Lay Witness and the

general topic of Expert Witness' normal declaration. Attorney doesn't

uncover the name of Client or of either witness. Attorney likewise keeps up a

blog related with his law office site and remarks on both the blog and a

lawful industry on-line talk board that in an issue Attorney is taking care of

there is a lay observer whose "memory is powerless" and who is "a more

seasoned courteous fellow." Attorney likewise notes on the blog and

exchange board that in a similar issue he has held a specialist witness whose

conclusion is "very strong" of the customer's position and Attorney currently

gauges harms in the matter "more prominent than" what Attorney initially

determined.

Attorney maintains that information revealed is harmless since he

never identified the names of Client, Lay Witness and Expert Witness.

Attorney, however, divulged sufficient information to enable an individual

familiar with elements of Client’s case to recognize the witnesses and the

importance of the disclosures made by Attorney.

The issue now involved is, are there ethical implications, if any, of an

Attorney’s disclosure of client-related information through social media to

the public and to a person whose identity is unknown to Attorney where the

cumulative effect of Attorney’s use of social media can allow readers to

aggregate and study information so that a Client’s confidential information

may be deduced or discovered from it, and the information includes

Attorney’s personal impressions, opinions or assessments related to the

representation?

In its discussion, the Los Angeles County Bar Association cited

Business and Professions Code, which states that each attorney is obligated

to preserve the “secrets” of the client. Under the California Rules of

Professional Conduct (CRPC), client “secrets” covers all information obtained

by a lawyer as a result of a lawyer-client relationship, the disclosure of which

likely would be harmful or embarrassing to the client or that the client has

directed the lawyer not to dispose. Also, the CRPC requires the lawyer to

take reasonable precautions to safeguard client interest.

The Los Angeles County Bar Association then moved on to a thorough

discussion about Lawyer-Client Privileged Information and Work Product

Protection protected by the Business and Protection Code and the Privilege

Code.

It is noteworthy to add, that in Colton vs. US, 449 US 338, the

elements necessary to establish lawyer-client privilege are as follows:

1. The asserted holder of the privilege is (or sought to become) a client;

and

2. The person to whom the communication was made:

1. is a member of the bar of a court, or a subordinate of such a

member, and

2. in connection with this communication, is acting as an attorney;

and

3. The communication was for the purpose of securing legal advice.

There are a number of exceptions to the privilege in most jurisdictions,

chief among them:

1. the communication was made in the presence of individuals who were

neither attorney nor client, or was disclosed to such individuals,

2. the communication was made for the purpose of committing a crime or

tort,

3. the client has waived the privilege (for example by publicly disclosing

the communication).

According to the Evidence Code, only the holder of a privilege can

waive its protections, either by disclosing a significant part of the

protected communication or by consenting to its disclosure by another

person. Hence, while inadvertent disclosure might not waive the lawyer-

client privilege, a lawyer’s disclosure of confidential client information,

including that which is privileged, nevertheless makes that information

available for use by others and that could cause the client harm. Such

disclosure would not constitute a waiver of privilege, but the opposing

party would be able to use the facts disclosed during the lawyer-client

communication to the detriment of the client’s case.

The Lawyer-Client Privileged Information is separate from and should

not be confused with the Doctrine of Work Product Protection.

Under the Code of Civil Procedure, the Work Product Protection allows

the lawyer to prepare cases for trial with the degree of privacy necessary

to encourage them to prepare for cases thoroughly and to investigate not

only the favorable but also the unfavorable aspects of those cases.

Absolute privilege is given to writings that reflect an attorney’s

impressions, conclusions, opinions or legal research or theories, and that

such writing is not discoverable under all circumstances. The only

exception to this is if the court determines that denial of discovery will

unfairly prejudice the party seeking discovery in preparing the party’s

claim or defense or will result in an injustice.

 Generally, while the Work Product Protection primarily pertains to the

clients’ disclosures of the lawyer’s work product, the same result would

follow a lawyer’s disclosure on social media of the lawyer’s own work

product.

In the instant case, the information that Attorney relayed to Individual in

their one-on-one communication, in concert with Attorney’s disclosures

about the two witnesses on the blog and discussion board, can provide the

opposing side with information to develop strategies that are detrimental to

Client’s interest. A lawyer who is part of an online community must comply

with all the duties with regard to confidential client information that lawyers

have in every other circumstance.

RECOMMENDATION

A lawyer shall be abreast of legal developments and its practice, as

well as the benefits and risks associated with relevant technology. This

change reflects the belated recognition of how technology affects nearly

every aspect of legal work, including how we store confidential information,

communicate with clients, conduct discovery, engage in research and

provide legal services.

As a lawyer catching up with the dizzying pace of social media, it is

important to consider, just what kind of content must be preserved. As the

instant case has shown us, in order to protect the lawyer-client privileged

information and work product, the preservation obligation extends to all

potentially relevant information. It’s critical for lawyers to know where the

ethical boundaries are drawn when using social media. The responsible use

of social media must be observed to uphold the integrity of the legal

profession.