CBA Record March-April 2022

the opinion is easily accessible. After receiv ing complaints from 46 di ff erent people, the bar investigated the posts and eventually brought charges against Traywick, argu ing that his posts were meant to, and did, incite gender- and race-based con fl ict. Th e Supreme Court of South Carolina agreed, fi nding that Traywick was expressly incen diary and that the comments were meant to incite con fl ict. Th e Court further found thatTraywick’s behavior tended to bring the legal profession into disrepute. In addition to being suspended, Traywick was ordered to complete diversity education and anger management classes, and to engage in the state’s lawyer assistance program. Finally, an entire column could be devoted to In re Sitton . Tennessee-based Sitton received a four-year suspension for his Facebook posts. Sitton’s Facebook friend, who was in the process of a divorce, almost rhetorically posted, “I need to always carry my gun with me now, don’t I? Is it legal to carry in TN in your car without paying the damn state?”What followed was a breathtaking exchange that is worth read ing in its entirety. Sitton quickly weighed in on the post, giving the woman advice on how to successfully kill someone and get away with it by setting up a success ful self-defense argument in advance. Th e exchange continued, and concluded with Sitton advising the woman to delete her post so it would be untraceable (spoiler alert: it was not untraceable). In imposing the suspension, the Tennessee Supreme Court found that Sitton, in his capacity as a lawyer, “o ff ered speci fi c legal advice on how to orchestrate a killing in a way calculated to provide the perpetrator a fabricated defense to criminal charges. Th en, in an ultimately unsuccessful e ff ort to conceal the conversa tion, he directed [the author] to delete the comment thread. Our rules do not permit lawyers to o ff er advice on how to commit a crime with impunity.” Th e bottom line? Your obligations as an attorney follow you everywhere—even online.

PRACTICAL ETHICS BY TRISHA RICH Be Careful AboutWhat You Post A ttorneys have been fi nding ways to get into trouble on social media ever since its use became wide of their “informal nature,” negative online reviews do not establish a controversy between a lawyer and a client within the meaning of Model Rule 1.6(b)(5).

spread. Although lawyers have become better at not making unforced social media errors, a few recent events have put this topic into the legal news again. Illinois Rule of Professional Conduct Rule 1.6 governs confidentiality in the profession. It provides that lawyers shall not reveal information related to the rep resentation of a client without the client’s informed consent (note, importantly, that this is a much broader protection than that provided by attorney-client privilege). Rule 1.6(b) provides the exceptions in which a lawyer may (not shall , as in some other jurisdictions) reveal con fi dential informa tion. Speci fi cally, Rule 1.6(b)(5) tells us that one of those exceptions is that we may reveal con fi dential client information when we are establishing a claim or defense on our own behalf in a controversy between the lawyer and the client. Typically, such claims or defenses arise in two main places: bar complaints and malpractice lawsuits. But more recently, lawyers have questioned whether respond ing to a critical online review constitutes establishing a claimor defense—this would, in theory, free the lawyer to reveal con fi den tial client information when responding to harsh public complaints. In January 2021, the American Bar Association Standing Committee on Ethics and Professional Responsibility published an opinion reject ing that argument entirely (Formal Op. 496). According to the opinion, because

What can a lawyer do, then? One of two things: (a) not respond at all, or (b) respond calmly, inviting the author to contact the lawyer via telephone to discuss concerns. Th e ABA does tell us, though, that it is perfectly acceptable for lawyers to request that the website or search engine remove the o ff ending review. A recent case in the news shot down a law fi rm’s defamation claims against people who posted online reviews stating that the fi rm’s owner was an “embarrassment” and a “disgrace.” Th e lower court had dismissed the claims, fi nding that the comments were statements of opinion rather than assertions of fact, despite the law fi rm’s argument that the commentators had not been fi rm cli ents. Th e Seventh Circuit Court of Appeals recently upheld that dismissal, finding that the statements were not actionable. As Judge Hamilton noted, a number of reasons exist for why someone might have a bad experience with a business that is not directly tied to a consumer relationship. Law O ffi ces of David Freydin P.C., et al. v. Victoria Chamara, et al. , No. 18-3216. Two notable social media cases from the last year are also worth discussing. In re Traywick resulted in a six-month suspension for a South Carolina attorney after he made a dozen posts on his personal Facebook page related to George Floyd’s murder. Th e posts contain hateful language that I will not repeat here, but for the curious among you,

TrishaRich isa litigator and legal ethicist at Holland&Knight. You can reach her at trisha.rich@hklaw.com, on LinkedIn at linkedin.com/in/trisharich, or on Twitter @_TrishRich.

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