Lawyers are, as a group, risk averse people. We are taught to minimize risk. But the explosion of social media use by lawyers have given rise to some interesting legal issues that make risk-averse lawyers nervous. For example:
- Can a lawyer unintentionally create an attorney-client relationship by providing general information about the legal system on a blog or website?
- To what extent do disclaimers such as, "The information provided herein is not legal advice. I am not your lawyer and no attorney-client relationship is created by your use of this website," protect lawyers from legal malpractice claims?
- Can a lawyer's employer be found to adopt or endorse a lawyer's personal activities on social media websites?
I learned of an interesting case this week out of the 9th Circuit Court of Appeals, Naffe v. Frey, that addresses the last question. Naffe, a political activist, sued Frey for statements Frey made about Naffe on Frey's blog and on Twitter. Naffe's complaint included a Section 1983 claim based on the theory that Frey, a deputy district attorney, was acting under color of law in making the allegedly derogatory statements about Naffe.
The trial court granted Frey's motion to dismiss the Section 1983 claim and the 9th Circuit affirmed. Of interest to those on social media, the 9th Circuit appeared to endorse Frey's use of a disclaimer on both his blog and Twitter. The Court noted:
Although [Frey] frequently references his position as a Deputy District Attorney in his posts and Tweets, his blog contains the following message: "The statements made on this website reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer."
What do you think? Should this provide some comfort to lawyers and the employers of lawyers who use social media?
Does this ruling suggest the 9th Circuit would also find that language on social media platforms disclaiming an attorney-client relationship would protect lawyers from legal malpractice suits?