Wednesday, November 30, 2016

Positional Conflicts – Those Tweets & Posts (May) Create Serious Conflicts Problems

"Tweeting, Blogging Lawyers Warned About Positional Conflicts" --
  • "Lawyers who blog or tweet about legal developments should be cautious 'when stating positions on issues' because 'those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict,' the District of Columbia bar’s ethics committee advised in November."
  • "The guidance came in one of two simultaneously issued opinions that discuss a host of ethical issues involving lawyers’ use of social media (D.C. Bar Legal Ethics Comm., Ops. 370 and 371, 11/16)."
  • "But the D.C. panel also highlighted a few risks that were not emphasized in prior ethics opinions. One apparently novel warning was on the risks of creating so-called 'positional' conflicts when blogging or tweeting about legal developments. These are conflicts that can arise when a lawyer advances one position but needs to argue the opposite on a client’s behalf."
  • "The panel warned that lawyers who blog or tweet about legal developments may run into ethical problems if they state positions on legal issues that conflict with positions they have advanced, or may be called on to advance, on a client’s behalf."
  • "The committee said lawyers who engage in online musings of this sort may inadvertently create a positional conflict under D.C. Rule of Professional Conduct 1.7(b)(4). That rule says a lawyer may not represent a client in a matter if 'the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by ... the lawyer’s own financial, property or personal interests.'"
  • "Accordingly, Cornett said, "If a blawger whose reputation is entwined with her blawg needs to take a contrary position in order to advance a client’s interests, she may be ‘materially limited’ from doing so because of that reputational interest.'"
This development is interesting on several levels -- The distinction between social/blogging commentary and other forms of expression being just one. (Though, the text of the opinion itself covers communications mechanisms as diverse as yelp, email lists and even general email, while acknowledging differences apply based on a number of factors.)

(I suspect that somewhere out there may be a lawyer who actually represents Twitter, who may be tempted to weigh in publicly on this particular opinion... maybe even via a tweet... but the circular logic loop of that potential conflict is too much to consider at the moment...)

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