Josh J.T. Byrne ()
Few lawyers who have not specifically looked into the subject have any idea how prolific the Philadelphia and Pennsylvania bar associations are at generating advisory ethics opinions. So far in 2014, the Philadelphia Bar Association issued six advisory opinions and the Pennsylvania Bar Association issued two formal opinions and at least 15 advisory opinions. While we do not have space to explore all of these opinions, we will review some of the highlights below. Attorneys should be aware of these opinions, which serve as “FAQs” regarding our profession.
Both the Pennsylvania and Philadelphia bar associations have offered opinions regarding aspects of social media this year.
• Pennsylvania Bar Association Formal Opinion 2014-200
One of the two Pennsylvania Bar Association formal opinions this year deals with the restrictions placed upon an attorney in responding to negative online reviews by clients. The opinion notes an attorney has a very strict duty to preserve client confidentiality, which is tempered by only a few limited exceptions. The opinion narrowly defines the attorney-client “controversy” exception in Pennsylvania Rule of Professional Conduct 1.6(c)(4), stating it does not apply to responding to Internet criticism. The opinion concludes, “A lawyer cannot reveal client confidential information in a response to a client’s negative online review absent the client’s informed consent.”
• Philadelphia Bar Association Opinion 2014-5
The Philadelphia Bar Association’s Opinion 2014-5 involves issues surrounding advising clients regarding social media, and specifically, Facebook. The opinion addresses: (1) whether an attorney may advise a client to change privacy settings on a social media account; (2) whether an attorney may instruct a client to delete material the lawyer believes is damaging from a Facebook page; (3) whether an attorney who receives a request for production of documents must produce a copy of a photograph the attorney saw on the client’s Facebook page; and (4) whether an attorney who receives a request for production of documents must produce a copy of a photograph posted by someone other than the client on the client’s Facebook page.
None of the opinions of the Philadelphia Bar Association’s ethics committee are particularly surprising. As the committee noted, these are basically issues regarding the obligations of a party and attorney to preserve evidence. The duties do not change regardless of the form of evidence, and discoverable information may not be concealed or destroyed. The committee found an attorney could advise a client to change privacy settings on a social media utility, but could not advise a client to delete or destroy material. The committee found attorneys must produce relevant material on the client’s Facebook page whether posted by the client or not.
• Pennsylvania Bar Association Informal Opinion 2014-021
This opinion addresses whether an attorney can accept funds from a client raised “via a social crowdsourcing website.” The opinion found no objection to accepting funds raised by a client through crowdsourcing methods, as long as the attorney does not allow third parties to influence the representation.
• Pennsylvania Bar Association Informal Opinion 2014-016
This opinion addresses whether attorneys may: (1) connect with a client or former client on a social networking website; (2) endorse another attorney on a social networking website; (3) permit clients to write reviews of the attorney; and (4) may comment on or respond to reviews or endorsements. The opinion generally stands for the proposition that none of these activities is prohibited per se, but an attorney must be cognizant of the relevant rules anytime he or she interacts with social media. The opinion ends with 12 “general guidelines,” which generally state attorneys are responsible for what they post, and they should think about what they are posting before doing so.
Criminal: Advising Clients Regarding Waiver of Rights
• Pennsylvania Bar Association Formal Opinion 2014-100
Pennsylvania Bar Association Formal Opinion 2014-100 deals with the ethical issues surrounding a prosecutor offering, or a criminal defense lawyer recommending, a plea agreement that includes a waiver of the defendant’s right to later make a claim of ineffective assistance of counsel. The opinion finds a criminal defense lawyer has a non-waivable personal conflict of interest in recommending such a plea agreement. However, an independent attorney could advise the defendant regarding the advisability of such a plea. The committee also concluded prosecutors should not attempt to limit ineffective assistance of counsel claims because doing so is “prejudicial to the administration of justice, which is prohibited under PA RPC 8.4(d).”
• Pennsylvania Bar Association Informal Opinion 2014-026
Like Formal Opinion 2014-100, Informal Opinion 2014-026 deals with ethical questions involved in recommending a client accept a plea agreement “which requires a defendant to waive important rights in order to accept a disposition which may not be available at a later time.” The opinion specifically addresses an “Early Accountability Program” (EAP), which offered lenient sentences if the defendant accepted responsibility and a guilty plea at the preliminary hearing stage. The opinion noted the clients of attorneys who objected to the program were “subject to less favorable treatment by the court and the District Attorney’s Office.” Attorneys even reported they were threatened with loss of employment if they did not recommend their clients participate in the program.
The committee member who authored the opinion found the EAP compelled attorneys to violate rules of professional conduct. In the opinion of the author, the EAP did not allow a defense attorney to fulfill the basic functions of performing a reasonable investigation of the facts and evidence against the defendant. Without performing such an investigation, the attorney is unable to advise the client as to the plea offer.
As was previously reported in The Legal, although the opinion did not refer to a specific program, it was apparently addressed to a program in Franklin County. The Legal reported in the Aug. 5 article “‘Early Accountability’ Plea Program Altered Amid Ethical Concerns” that the program has since been changed to make discovery available for two weeks before the attorney advises the client on the EAP.
Conflicts with Former Clients
• Pennsylvania Bar Association Informal Opinion 2014-012
This opinion asks whether an attorney who previously represented “Mary” in a protection from abuse action against another man (at the request of “Bob”), can now represent Bob in preparing a prenuptial agreement prior to Bob’s marriage to Mary. The opinion states such a representation would be permissible because the prior matter in which Mary was represented is not the same or substantially related to the proposed representation of Bob.
• Philadelphia Bar Association Opinion 2014-4
This opinion asks if an attorney at a firm that many years previously represented a corporation for some “general corporate representation,” including zoning issues, real estate purchases and the like, could represent a slip-and-fall client who was injured at a property owned by the corporation. As with Pennsylvania Bar Association Informal Opinion 2014-012, the opinion finds such representation would be permissible because the proposed representation is not “substantially related” to the prior representation.
• Philadelphia Bar Association Opinion 2014-1
This opinion relates to whether an attorney can continue to represent a criminal defense client when he discovers an attorney who just joined his firm previously represented the main government witness against his client. The opinion suggests such a representation would be untenable. The situation creates an unwaivable conflict of interest as the new attorney to the firm learned “material, confidential information in connection with his former representation” and the interests of the two clients are materially adverse. The opinion does suggest if the conflict were recognized prior to the new attorney joining the office, then there would be the possibility of setting up an effective screen.
As noted above, this is a small sample of the issues addressed by the Philadelphia and Pennsylvania bar associations in their advisory opinions just this year. Other issues include the permissibility of contacting former employees of adverse corporations and payment of compensation to fact witnesses. The committees try to address issues of general relevance, and are a good resource when ethical issues pop up during the regular practice of law. As both committees note, the opinions do not carry the force of law, and are not binding upon the Disciplinary Board, but they generally do provide well-reasoned analysis of the application of the Rules of Professional Conduct to real problems regularly faced by attorneys.
Josh J.T. Byrne is a partner with Swartz Campbell’s professional liability group. Byrne is the vice chair of the Pennsylvania Bar Association’s professional liability committee. He speaks throughout Pennsylvania on malpractice avoidance. Byrne also regularly contributes blog entries to Swartz Campbell’s professional liability blog. •