Public Discipline For Facebook Posts That Violated Duty Of Confidentiality

A public reprimand has been imposed by the Massachusetts Board of Bar Overseers, which rejected a private admonition for an attorney's Facebook posts concerning a client.

As to violation a hearing committee had proposed that the charges be dismissed.

While it is not necessary for us to address the committee's legal conclusion (that information falls within Rule l.6(a) only if it could reasonably be linked to the client), we disagree with its analysis of the facts, specifically, that there was an insufficient connection to the client in the Facebook post. We decline to adopt its factual finding, which is not based on the credibility of witnesses. See B.B.O. Rules,§ 3.53. Doe and her daughter both recognized that the Facebook post concerned Doe. The post disclosed sufficient information that it was clear to Doe's daughter that the post referred to her mother.  Thus, bar counsel produced sufficient evidence to prove a violation of Rule 1.6( a).

Even if there were no evidence that a third party actually recognized the client in the post, we would still conclude that the respondent had violated Rule l.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Facebook, the friend would learn about the "grandmother" and her litigation with DCF. There are numerous other reasonable scenarios.

Sanction

Unlike the admonition cases relied on by our fellow board members who would prefer an admonition, the respondent's disclosure about Doe was not limited to a message board or a single recipient. By posting on Facebook, the respondent potentially disclosed his client's information to anyone with an internet connection or cell phone service. The post is no different than publishing the facts in a newspaper or broadcasting them on television. Furthermore, the matter discussed by the respondent here was a sensitive child custody case that our legislature has deemed to be worthy of confidential protection by statute, Mass. G.L. c. 119, § 38. The respondent's conduct ignored not only the basic tenets of Rule 1.6, but the basic confidentiality requirements that all attorneys who handle these sort of child custody and protection matters should honor.

The majority concluded that the "serious breach of the client's trust" required public discipline.

The BBO minority

We concur in the decision of the majority of the board voting on this case to the extent the majority rejects the hearing committee's recommendation that the petition be dismissed. For the reasons set forth in the majority opinion, the respondent violated Rule l .6(a) when he disclosed information about a client matter in three Facebook posts. Discipline is warranted.

We respectfully dissent from the recommended disposition. We would impose an admonition, which is consistent with our precedent.

(Mike Frisch)