Young lawyers, tell me you’ve never gotten a private Facebook message before that went like this:
“Yo, brah… I know you’re a lawyer so I want your advice. Last night I got pulled over by the cops and got a DUI. Yeah, I had like 10 rum and cokes, and I was pretty wasted, but they can’t pull me over like that, right? I mean, I was only doing like 10 over the speed limit. Can’t we fight this shit in court??? You can get me off, right???”
I’m sure many young lawyers have received a private Facebook message, a direct Tweet, a LinkedIn message, or some other type of seemingly private message over a social networking site seeking legal advice. Chances are you’ve answered it. You and the sender both probably believed that the message is privileged, because it was a private piece of correspondence made to an attorney containing legal advice. This is because in law school, you learned that private communications between an attorney and someone seeking legal advice are privileged. You believe that if someone sends you something private seeking legal advice and it’s privileged. You respond with your sage advice, and that’s privileged too, because the law protects this sort of thing.
Ergo, common sense suggests the a private message on a social network sent to a lawyer for the purpose of obtaining legal advice is privileged, right…?
Too bad it ain’t that simple. Especially here in Pennsylvania…
You see, unfortunately, sometimes the law is stupid and the courts “don’t get it”. They don’t always use common sense. Often the law develops slowly, sometimes stupidly, and it doesn’t reflect the realities of modern life. However, the law it is what it is, and you have to take steps to make sure your correspondence with clients and potential clients remains confidential.
Let’s take a quick look at the law here in Pennsylvania…
All the way back in 2007 (which, by my calculations, is about 100 years ago), the Superior Court affirmed an order of the Court of Common Pleas requiring the Appellants to produce communications containing their outside counsel’s legal advice, analysis, and opinions. The Superior Court held that these documents were not protected by the attorney-client privilege because they were communications made by an attorney to a client. In doing so, the Superior Court followed its decision in Nationwide Mutual Insurance Co. v. Fleming, 924 A.2d 1259, 1264 (Pa. Super.2007), which held that the privilege protects communications from an attorney to a client only to the extent such communications contain and would thus reveal confidential communications from the client. The Superior Court stressed that “[a]s a published Opinion, unless and until the Supreme Court overrules Fleming, it is controlling on this Court.” (Op. 4 n.2.) (emphasis added). (Read: We think this is stupid but the law is what it is.)
Say… what?!?! Yes, you read that right. In 2007, the law in Pennsylvania was that attorney correspondence to a client was not privileged, except to the extent that it revealed confidential information sent from a client. The rationale was this – the Pennsylvania attorney / client privilege statute states that:
In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.
The Superior Court read the statute literally to mean that only communications from a client to an attorney were privileged. However, communications from an attorney to a client were not. Privilege in Pennsylvania was thus a “one way street.” Furthermore, the court in Birth Center v St. Paul Co., 727 A.2d 1144 (Pa. Super. 1999), held: “the attorney-client privilege … only bars discovery or testimony regarding confidential communications made by the client during the course of representation.”
However, in Gillard v. AIG Ins. Co., No. 10 EAP 2010, 2011 Pa. LEXIS 393, at * 40 (Pa. Feb. 23, 2011), the Pennsylvania Supreme Court overturned Fleming, holding that “in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” And believe it or not, there were dissenting opinions – this wasn’t a close call by any stretch of the imagination.
Alright, so this all makes sense. Although the law was stupid
a hundred years ago until about a year ago, the Pennsylvania Supreme Court has stepped in and made everything okay. Now all communications between a lawyer and a client are privileged, right?
Errrr… not so fast, homie. That isn’t necessarily the case…
For instance, what if you discuss a sensitive legal matter with someone over Facebook or MySpace? I mean, it’s private correspondence between an attorney and client for the purpose of obtaining legal advice? That’s privileged, right?
I would agree, except for one problem: the issue hasn’t been addressed by an appellate court. And the trial courts who have addressed the issue have found that the communications are not privileged, because the court feels the communications are not private enough. For example, in Zimmerman v. Weis Markets, a trial court held that:
Thus, while it is conceivable that a person could use [social networking] as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.
The court’s rationale was this:
The Zimmerman court relied on McMillen v Hummingbird Speedway, Inc., another trial court opinion, which also held that communications on social networking sites are not privileged. The McMillen Court’s rationale was this:
Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post.
In holding this, both the Zimmerman and McMillen courts compelled a party to turn over full and complete access to its MySpace and Facebook account:
AND NOW, this 9th day of September 2010, for the reasons articulated in the foregoing Opinion, it is hereby Ordered and Decreed that the Motion to Compel Discovery is GRANTED. Accordingly, the plaintiff shall provide his Facebook and MySpace user names and passwords to counsel for Defendants Hummingbird Speedway, Louie Caltagarone, and Dave Resinger within the next FIFTEEN (15) DAYS.
This means that counsel had access to all of a litigant’s private messages and chats. These could have been chats with a lawyer, a spouse, a priest, or who knows… yikes. But aren’t those communications privileged? At the very least, shouldn’t the court conduct a review first? The Zimmerman Court held that they won’t do this because it’s too much work:
In the alternative, Zimmerman also argued that the Court should conduct an in-camera review and decide what materials should be provided to Weis Markets. This argument is flatly rejected as an unfair burden to place on the Court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also would require the Court to guess as to what is germane to defenses which may be raised at trial.
In other words, turn over all the information, and the Court isn’t going to review it first to make sure privileged stuff doesn’t fall into the wrong hands.
In my view, the court’s reasoning is silly, because the same could be said about Gmail. A client could (stupidly) forward a privileged communication to someone, or in theory Google / AOL/ Comcast could disseminate private emails. I don’t think the courts understood that some Facebook posts are public, some are semi-public, and some are intended for one sole recipient (like a lawyer or spouse). I also firmly believe that the means of communication changes from generation to generation. Our grandparents wrote letters, our parents used the phone, we send each other messages over Facebook. Just because young people communicate differently than older people doesn’t mean it should be treated differently. No argument there.
Unfortunately, I don’t decide the law.
And sometimes stupid law is what governs. For example, most Pennsylvania lawyers agreed that Fleming was silly and that all private communications between a lawyer and a client should be privileged. While most didn’t like Flemming, and thought the Superior Court was mean, it nevertheless remained the law until the Pennsylvania Supreme Court said differently in Gillard. But before Gillard, Pennsylvania lawyers had to comply with Fleming and take adequate steps to protect their clients until told differently.
Even though the law was silly, stupid, out-dated, didn’t make sense, and probably decided by a court that didn’t own one Apple product. Not even an old iPod.
Which brings me to my point – as a lawyer, our job isn’t to write the law. Our job is to protect our client’s interest. Given that the case law is, at best, unsettled, why risk it?
That’s why I don’t give legal advice on Facebook. If you’re a young lawyer, consider limiting your legal correspondence to emails, letters, telephone calls, and in person communications. Though I firmly believe a private message sent over Facebook, MySpace, or a message board should be privileged, the courts might disagree. Since that’s the case, it’s probably not a good idea to jeopardize your clients’ interests by risking it.
Put it this way – the the courts only decided in 2011 whether communications from an attorney to a client are privileged. Even though common sense prevailed, it was a close call. What makes you think they’re going to decide social media issues (which they might not even understand) any time soon? And, given the past, what gives you confidence that the issue will be decided correctly?