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Tweets of Wrath: This Attorney Didn’t Listen

Tweets of Wrath: This Attorney Didn’t Listen

September 7, 2013 Written by: Brian Focht 5 comments
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twitterNot long ago, I wrote a post entitled “Tweets of Wrath: Social Media and the Disgruntled Client.” In the event you choose not to go back and check it out (I wish you would, it’s one of my favorite stories), the basics of the post discuss the steps someone should take when responding to a disgruntled client’s social media posts.

Remembering that the key rules STILL APPLY to social media, the biggest thing you want to make sure you do is keep confidential information… well… confidential. After that, you really need to remember NOT to injure the client by what you post. In the end, it remains my position that your best bet is to ignore the post the best you can.

Well, today I saw this article, talking about an Illinois attorney who decided that she would rather respond…

The facts of the case, as described by the article, and confirmed in this complaint filed before the Illinois Attorney Registration and Disciplinary Commission, are as follows:

  • During the month of September 2012, the attorney, Betty Tsamis (“Respondent”) agreed to represent a Richard Rinehart regarding an employment dispute between Rinehart and his former employer, American Airlines. Rinehart, who had been a flight attendant, was terminated by American Airlines, reportedly due to an alleged assault by Rinehart on a coworker. Rinehart paid Respondent a retainer of $1,500.
  • Between September 2012 and January 2013, Respondent met with Rinehart on at least two occasions, and reviewed Rinehart’s employment file, which she obtained from American Airlines. During January 2013, Respondent represented Rinehart in a telephone hearing with the Illinois Department of Employment Security, who denied Rinehart’s claim. Rinehart subsequently terminated Respondent.
  • In early February 2013, Rinehart posted an unfavorable review of Respondent’s legal services on the review site AVVO. According to the complaint, Rinehart stated in his review: “She (Respondent) only wants your money, claims “always on your side” is a huge lie. Paid her to help me secure unemployment, she took my money knowing full well a certain law in Illinois would not let me collect unemployment. [N]ow is billing me for an additional $1500 for her time.”
  • Respondent immediately contacted Rinehart, requesting that he remove the post. Rinehart refused unless Respondent returned his file along with the entirety of the $1,500 retainer. At some point between then and April 10, 2013, AVVO removed Rinehart’s post.
  • On April 10, 2013, Rinehart posted another review on AVVO, stating: “I paid Ms. Tsamis $1500 to help me secure unemployment while she knew full well that a law in Illinois would prevent me from obtaining unemployment benefits.”

Following Rinehart’s April 10, 2013 post, Respondent lost her cool, and decided to post a response to his post:

“This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.”

Can you count the ethical violations in this one? It’s kind of sad to make a game out of it, but seriously, WHAT WAS THIS ATTORNEY THINKING?!? Remember, the first thing that you MUST do when you decide a response is required is you MUST make sure NOT to reveal any client confidences! Well, the attorney here first revealed that Rinehart had not provided a complete statement of his situation during their confidential attorney-client meetings. Next, she revealed that Rinehart wanted to attempt to collect benefits from his former employer despite the fact that he would likely lose. And the coup-de-grâce? Revealing that Rinehart’s case involved his beating up a female co-worker.

Even if we get past the whole “revealing of client confidences” part (or somehow argue that Rinehart had waived the confidences with his earlier posts), there’s still this pesky little issue regarding the purpose and demeanor of Respondent’s post. See, it was meant to injure Rinehart, to scare him off so that he would not continue posting! Can’t do that! You cannot post ANYTHING on social media that might cause injury to the former client OR the former client’s legal position.

Moreover, Respondent’s post actually opened her up to another ethics charge, which was included in the complaint: pursuing a frivolous action! Why on EARTH would you respond to a disgruntled client’s social media posts by admitting that you knew their claim lacked merit, but proceeded anyway!

Oh, and just in case you didn’t check out the complaint, this ENTIRE EPISODE was only one of TWO separate counts that Respondent is currently before the ethics board for. The other involves her improperly drawing money from her IOLTA account.

UPDATE: On January 15, 2014, the Illinois State Bar released the results of Ms. Tsamis’s ethics charges. Read about them here.

  • Marcus Landsberg

    Your quote: ” Remember, the first thing that you MUST do when you decide a response is required is you MUST make sure NOT to reveal any client confidences!”

    **You might want to be careful about giving legal advice on the internet**

    First review ABA Ethics Rule 1.6b5, before you go giving legal advice about ethics.

    (b) A lawyer may reveal informa tion relating to the representation of a client to the extent the lawyer reasonably believes necessary:
    (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

    ________________________________

    Is there a controversy between the lawyer and the client? Yes. Did the lawyer reasonably he needed to reveal information related to the representation to establish a defense to the controversy? (Remember, not did a saint reasonably believe, not did YOU reasonably believe, not would an ordinary lawyer reasonably believe, it’s did THIS lawyer reasonably believe.) Clearly, yes.

    Your legal advice above is clearly false. It is easy for us as lawyers to jump on the backs of those who get old, or can’t handle, or slip up. If we’re going to represent to best of the profession we should hopefully be giving each other a hand up, not kicking each other when they’re down. Clearly this attorney is having a hard time with the other complaints against him, why dogpile?

    You might want to doublecheck the ethical rules, before you insult other people’s ethics. I’m very disappointed. I believe in you. You can do better.

    • http://www.thecyberadvocate.com/ Brian Focht

      Before I begin, thank you for reading my article.

      First, this blog is opinion and commentary on the current state of the law, not explicit or implicit legal advice, which would imply an invitation for the creation of attorney-client privilege. No such invitation exists, and (for the first time! I’m a little excited actually!) if you have any questions regarding same, check out the disclaimer. Second, since it is my opinion on the current state of the law, I would be VERY comfortable advising a client that they should never reveal client confidences in a social media post, as such actions are likely to result in ethics charges, at the least. In my opinion, the Rules of Professional Conduct are a starting point for professionalism in the practice of law. I do not believe that toeing the ethical boundaries constitutes acting “ethically,” even if it technically is not “unethical.”

      Finally, I am quite familiar with the ethics rules. First, you cite the ABA Model Rules, which are not binding on anyone. But, for the sake of argument, let’s assume that the state in question uses the model rules without modification. I am familiar with no state that relies on the model rules issuing an ethics opinion that considers a response to a social media post as qualifying directly for protection under Rule 1.6. The only decision that DOES suggest that responding in social media somehow qualifies as “establishing a claim or defense” is a decision by the Los Angeles County Bar, in the only state in the union that doesn’t use a version of the ABA model rules. And even that decision stopped short of the notion that a social media response was the proper place to reveal confidences as part of a defense of a claim of the type referred to in Rule 1.6.

      Generally, the terms of 1.6 have been held to protect attorneys who reveal client confidences as a part of their defense against either ethics charges or legal malpractice. In both circumstances, even the extent that the confidence is actually “revealed” is limited, because of the forum in which the information is disclosed (courtroom or state bar ethics hearing usually). Of course, that could always change. The necessity of attorneys to keep as current as possible on the applicable ethical standards, particularly in unsettled areas of law like social media, is paramount.

      Even considering all of that, none of what you quoted from my article is an inaccurate representation of current law. You are absolutely not allowed to reveal client confidences in a response to a former client’s social media post. Call it semantics, but if the former client’s post includes information originally provided in confidence, it’s no longer confidential. Explicit waivers of the attorney-client privilege of that nature would obviously allow the attorney to comment on the information presented by the former client.

      Until absolutely explicit rules or opinions are released governing how attorneys should respond in situations like this attorney found herself in (which resulted in her majorly overreacting to one guys posts – and if you think her actions were justified under Rule 1.6, I sincerely hope you take some time to brush up on some ethics opinions), attorneys MUST always be sure that any social media posts do not include confidential client information, lest they risk an ethics charge.

      • Marcus Landsberg

        Is like saying “Don’t cross the street, lest you risk a jaywalking charge”. The question is not IF you get a charge but “will it be upheld”.

        **I do not believe that toeing the ethical boundaries constitutes acting “ethically,” even if it technically is not “unethical.”**

        In your mind un-ethical and not-ethical have different meanings. I know you have no authority for that (or you would have pointed to it). Toeing the ethical boundaries means acting ethically, period. There is no gray area. There is a higher level of ethical activity, where we get to “best practices”, which is what we should all be trying to reach. But gray area? there is none. That’s the point of ethical rules: before the rules, everything is gray area. It’s like lines on the road. Being “kind of” in your lane means being out of the lane. Inside the lane, you might be chugging and sputtering, it may not be pretty, but it’s still within the lines.

        *the ABA Model Rules, which are not binding on anyone.*
        *the only state in the union that doesn’t use a version of the ABA model rules.*

        Of course I know the model rules are non-binding, but also know that most states use them as a “model”, hence the quoting (since your post is directed at attorneys in all states). Of course, you knew this too. My state’s 1.6 is word for word the same, so quoting the model rules is functionally the same.

        As far as a disclaimer, I should didn’t see one, but no one reads those anyway. Especially not on a blog. Either way, it’s easy to say something is “not explicit legal advice”, and then give explicit legal advice **“You cannot post ANYTHING on social media that might cause injury to the former client OR the former client’s legal position.” ** This is explicitly legal advice. This is what someone can or cannot do, under the law (particularly, it’s your opinion). It might not be legal advice if you pointed us directly to the applicable rule. But you didn’t. You interpreted it. That’s legal advice and a rose by any other name would still smell the same… Or maybe that’s in your “gray area” of ethics which is not un-ethical, but still not-ethical.

        Attorneys have an absolute right to defend themselves against accusations made by a former client. The historical reason for this is NOT to defend the attorney, it is to defend the honest CLIENT. Here’s why: If you as a client, say I cheated you, I didn’t do what I was supposed to do, that I stole your money, without this exception to the confidentiality rules I would have to address the world and say “Oh no, that’s not true, and If I was allowed to -under the rules- show you what was in his file you would all agree with me. But I can’t, because I’m held to the highest ethical standards! So it’s not true and take my word for it because I’m upholding ETHICS and I am not allowed to show you proof.”
        Nowadays the attorney cannot hide behind that logic. And that’s what keeps honest clients protected, because if that client was dishonest, I would show you proof.

        Thank you for the conversation, and I enjoy your tech articles. I look forward to more articles about this “gray area of ethics” between un-ethical and not-ethical, which I find a fascinating concept.

        • http://www.thecyberadvocate.com/ Brian Focht

          Although I think you are mis characterizing my post, I’ll say that I respectfully disagree, and hope to have more discussions with you in the future. I will say, though, that this article really must be read as a supplement to my earlier Tweets of Wrath article to, from what I can see, address most of your points.

          • Jason Johsnon

            I must say that I never comment or read things – BLOGISH but this is a perfect exsample for my writing. I agree with you Brian about reading everything before you jump into your troll “pants”.

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