Facebook Post Lands Attorney in Hot Water

Fact: most professionals use social media in one form or another.  Fact: Professional Liability Matters has previously warned of the various risks associated with LinkedIn, Facebook, and other online communications. Nonetheless, we continue to encounter seemingly countless reminders of missteps by professionals through presumably well-intentioned social media use.  Recently, a Facebook post from a New York based attorney resulted in a fight over sanctions.

Last month an NY attorney found himself in hot water after posting a picture of himself and a client after a mediation session with a Tampa-based defendant.  The picture portrayed the attorney smiling with his client and bore a caption that said “Pic After Making a $43 Million Dollar Demand at Mediation.” In the underlying dispute, captioned A1 Procurement et. al.  v. Hendry Corp. et. al., Doc. No. 1:11-cv-23582, the plaintiff alleged that the defendants violated the False Claims Act for allegedly misrepresenting their Veteran-Owned and Service-Disabled-Veteran-Owned Small Business status while bidding on federal contracts. When the defendant’s counsel learned of his adversary’s Facebook post, he filed a motion seeking sanctions against the plaintiff’s attorney.  The defendant alleged that the photograph was a knowing and willful violation of relevant Florida confidentiality provisions barring disclosure of mediation communications.

The judge ultimately refused to impose sanctions.  However, the case demonstrates the potential ramifications that attorneys and all professionals face when posting sensitive information on social media outlets.  There is a line between appropriate marketing and a breach of the ethical and professional standard of care.  It is up to each professional to monitor their own social media activity carefully to ensure the professional stays on the right side of that line.