Facebook Post May Lead to Attorney Disqualification

Social media is ubiquitous in the workplace.  Professionals use social media to write about their achievements, to discuss developments in their field, and to promote their practices.  Professionals who use social media as an extension of their practice must be cautious, however, that the discussion of pending matters does not violate their duty of confidentiality to clients or expose confidential information that would prejudice others.

The potential liability for uncensored social media posts was recently brought to the forefront in a lawsuit in Florida federal court, Case No. 1:14-cv-24899.  There, the defendant, a cruise company, filed a motion for sanctions against the plaintiff’s counsel after he allegedly posted on Facebook a series of potentially prejudicial statements.

The defendant asserted in the motion that the attorney uses his Facebook page as an advertisement his law firm.  The defendant noted that the Florida Bar Standing Committee on Advertising previously determined that social networking sites that are used to promote a lawyer are subject to lawyer advertising rules.

Nevertheless, the attorney posted that his firm would be starting a “huge trial” later in the week against the defendant, and made statements that the decks of the defendant’s cruise ships caused passengers severe burn injuries and that the defendant knew about the potential risks.  In addition the motion states that the attorney engaged in a back-and-forth with viewers on the page regarding his posts, in which the attorney made additional statements about a supposed settlement offer made by the defendant at mediation.

The defendant contends that the attorney’s posts and replies are a violation of the local rules of procedure, which prohibit attorneys from making extrajudicial statements by means of public communication if there is a reasonable likelihood that the dissemination would interfere with a fair trial.  The defendant continues that the lawyer’s statements increase the potential for mistrials, given the possibility that jurors could access the Facebook page and be influenced by the statements.  The defendant also notes that the statements violate the mediation privilege that settlement offers at mediation are confidential.  As a result, the defendant sought sanctions against the attorney, including disqualification from the lawsuit and from practice before the court.

Attorneys and other professionals must act cautiously when posting about their professional experiences on Facebook and other social media websites.  Making details about a pending case public could violate rules of confidentiality, lead to sanctions against the professional, and ultimately jeopardize the client’s interests.

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