The Ethics of Parrotghazi: Be a Fucking Lawyer.

The next time I get the idea to toss my hat into the ring on a Twitter war like Parrotghazi, someone make sure to smack me firmly, yet somehow gently, in the crotch. Since the post went live yesterday, I’ve found myself quoted on People.com, retweeted God knows how many times, and somehow intimately involved in the sordid tale of how two lawyers have embroiled themselves in a war over custody of a tweet.

I’m glad people are enjoying reading about this, and excited they’re reading about it here, but Jesus Christ I now know more about parrots than I ever wanted to know. So let’s go in a different direction. Let’s look at the worst case scenario in Parrotghazi, and the legal stuff that has been brought into play in it.

I’m going to warn you before we start, I’ve already started drinking tonight.  But really, I want to be clear that everything that follows is completely speculative, and I’m only using Parrotghazi and Mr. Adler as an example of how a lawyer using social media can go horribly awry.  I’m not accusing Mr. Adler of a damn thing, it’s just the “what ifs” here allow for a fun exploration of ethics and social media for lawyers.  Mr. Adler has asserted he stands behind the originality of the tweet and the representation of this case, and he’s entitled to the benefit of the doubt on that.

If Mr. Adler wants to get his side out here, I’ll gladly post his version of events, unedited, to this blog.  Trust me, in this situation nothing would make me happier than to do a full retraction.  I don’t like talking about other lawyers.

That said, for this post, we’re going to assume Mr. Adler stole the tweet in question. We’re also going to assume that he never handled a parrot case. I want to be clear, he has stated he handled such a case on Billypenn.com and to the BBC show Newsday and he is entitled to be believed.  I don’t know whether he did or not, and he ain’t talking other than to state to Billypenn.com that he’s standing by his story, so I can’t speak to the truth of that statement.  But we’re going to assume, for the purposes of this post, that he didn’t, okay?  Chill the fuck out, everyone who’s about to scream “defamation.”  Mr. Adler is just an example I’m using with extraordinary assumptions here, because he’s the one the whole Parrotghazi issue has come up with.  As stated in an earlier post, and stated again herein, Mr. Adler is a member in good standing with the Pennsylvania Bar and is entitled to be believed absent concrete evidence to the contrary.

So, let’s start there.  Let’s start with the idea that Mr. Adler didn’t actually have a case that involved a gay divorce (listen to that BBC statement) for a Philadelphia couple that required him to divide custody of a parrot.  He embellished it.  Alright.  Why is that a big deal?  People make shit up all the damn time and nobody makes a case out of it.  Right?

I’ve talked about this.  Stop tweeting and pay attention this time.  It’s a big deal not because he stole someone’s tweet (that just makes him a dick) or because he lied (that just makes him a dishonest dick), but because, if he did, he’s a fucking lawyer.  Everyone who is talking about this has been focused on the plagiarism aspect of it, and ignoring the implication that if he stole the tweet, the chances that he lied about his cases and representation not just on local, not just on national, but on international media goes up.

What do I mean with that?  Alright, let’s look at his statement to Billypenn.com again, alright:

So their lawyer, Michael Adler, came up with the obvious solution: Visitation, plus prohibiting each man from teaching the parrot negative phrases about the other.

Adler said disputes over dogs are relatively in common in divorces, but the parrot provided a new challenge… verbalization. In other words, they can talk. Therefore, they can talk shit.

So he spoke with other lawyers for advice this morning before coming up with “the idea of just agreeing not to say anything nasty in front of the parent.”

“You have to use creative skills to get at what is bothering the other side,” he said. “Having to dissolve emotional disputes.”

This comes off as a skilled and intelligent advocate using experience and outside of the box thinking to resolve a unique situation.  Personally, I have no doubt that Mr. Adler is a skilled and intelligent advocate.  Given the number of times he’s repeated amazingly similar Tweets without credit, which we’ve covered before, as his own, I have my own doubts about the “creative” part.  But he’s been licensed to practice in Pennsylvania since 1998, and he has no history of disciplinary action, so I can assume he’s a good and ethical lawyer when it comes to getting results for his clients and that he’s handled a variety of matters competently, including divorces that involve animals.  Hell, I’ve handled divorces that involve animals.  I had one that ended when the fucking dog finally died.  I’m certain he has experience in negotiating pet-centric divorces, because people are spiteful-fucking-lunatics when it comes to divorce and pets.

But, here’s the problem: Rule 8.4 of the Pennsylvania Rule of Professional Conduct, which states:

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

And the fact that this is “just Twitter” isn’t an excuse, considering that Mr. Adler has insisted that this tweet is his and the case has really happened.  First, he’s insisted this out loud to the media when asked.  That alone seems to fall into dishonesty if he never had that case.  More than that, the fact that it’s Twitter isn’t an excuse either, and not just because there were statements made outside of Twitter.  It’s also because back in 2014 the Pennsylvania Bar Association issued an Advisory Opinion specifically surrounding misrepresentations and attorney usage of social media.  While these opinions, despite being “formal,” aren’t binding in whether something is ethical or not, they tend to be decent indications.

In the pertinent part, the opinion points out, while discussing Rule 8.4, that:

Social networking easily lends itself to dishonesty and misrepresentation because of how simple it is to create a false profile or to post information that is either inaccurate or exaggerated.

Additionally, even if the lawyer themselves isn’t the one to post or make a misleading statement about the attorney’s expertise or practice, the advisory opinion makes it clear the attorney has an absolute ethical duty to correct that misinformation once they are aware of it:

Although an attorney is not responsible for the content that other persons, who are not agents of the attorney, post on the attorney’s social networking websites, an attorney (1) should monitor his or her social networking websites, (2) has a duty to verify the accuracy of any information posted, and (3) has a duty to remove or correct any inaccurate endorsements. For example, if a lawyer limits his or her practice to criminal law, and is “endorsed” for his or her expertise on appellate litigation on the attorney’s LinkedIn page, the attorney has a duty to remove or correct the inaccurate endorsement on the LinkedIn page. This obligation exists regardless of whether the information was posted by the attorney, by a client, or by a third party.

So, it’s pretty clear that not only would Mr. Adler, if the parrot case did not occur, have a duty to correct the indication that it had, but once the affirmative statements of others are being made that assume he handled such a case, he has an ethical obligation to correct those as well.  He didn’t.  So then either his behavior was possibly unethical, or he actually had the parrot case, and I don’t know which it is.  Now, as I said, we’re not saying whether or not Mr. Adler had the parrot case, we’re just assuming, for the purposes of this post, that he didn’t.  If that’s true…well, allowing others to continue the misrepresentation and, as seen in the interviews, going along with it raises ethical implications (or could raise ethical implications).

Also, there’s another concern about the BBC interview, even if we change the assumption to one that Mr. Adler is being completely honest.  That interview has Adler making a few key statements about his clients, broken down as follows:

  1. They are in Philadelphia;
  2. They are a gay male couple;
  3. They have substantial property holdings in the city;
  4. They have a pet parrot.

Now, those seem pretty vague, but when you bundle all those together (gay, affluent Philadelphia couple who were married and are now getting divorced who own a pet parrot) the group of people that he could be referring to narrows substantially. And this is an issue because of our Rule of Professional Conduct 1.6 and Rule 3.6, which the Committee tackled in response to social media postings (and one would assume the resulting news interviews) as follows:

the Committee emphasizes that attorneys may not reveal such information absent client approval under Rule 1.6. Thus, an attorney may not reveal confidential information while posting celebratory statements about a successful matter, nor may the attorney respond to client or other comments by revealing information subject to the attorney-client privilege. Consequently, a lawyer’s comments on social media must maintain attorney/client confidentiality, regardless of the context, absent the client’s informed consent.

Rule 1.6(d) instructs a lawyer to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of . . . information relating to the representation of a client.” This means that a lawyer must be mindful of any information that the lawyer posts pertaining to a client.

For example, the Supreme Court of Illinois suspended an attorney for 60 days for writing about confidential client information and client proceedings on her personal blog. The attorney revealed information that made her clients easily identifiable, sometimes even using their names. The Illinois Attorney Registration and Disciplinary Commission had argued in the matter that the attorney knew or should have known that her blog was accessible to others using the internet and that she had not made any attempts to make her blog private.

That’s pretty broad, isn’t it?  The question of whether or not a communication is such that it violates Rule 1.6 is more or less judged on a case-by-case basis, but if you say “I represented a gay couple in their divorce in Bumfuck, PA” and there’s one gay couple in Bumfuck…well…now anything you say about the case is pretty much identifiable to the client, isn’t it?  Considering that, by Local Court Rule in Philadelphia County, all family court records are confidential and only subject to disclosure to a client and their attorney, even if Adler is being honest he could still have a headache on his hands.  Where an attorney’s statements, not just to other lawyers or associates but to the fucking BBC, could narrow down and lead to the identification of his clients, and contains information that is confidential by court rule, we’re heading into some Rule 1.6/Rule 3.6 ethical issues territory.

Now, I want to be clear, lawyers talk about your case.  We’re all guilty of that to some extent.  We all bullshit with each other.  But we don’t typically do it on international radio shows, or in newspapers, and in a manner that could lead to your identification.  In fact, there’s a good chance that Mr. Adler had absolutely nothing wrong with his statement even after the interview, because whether it was sufficiently specific is a question not for the internet, but for ethics counsel.

Personally, if someone identified a post or tweet of mine and asked for a comment (and it has happened, believe it or not), my statement is “No comment.  I’m not discussing this in any more detail than what I already said.”  Why?  Because, flat out, it’s the ethically safe thing to do…well…the ethically safe thing to do is to not talk about client shit at all, but that’s not gonna happen.  Still, if you do, you don’t elaborate on it to the media.

All in all, while the question of “Did Adler steal the parrot tweet” is related, it’s related to the ethics of the matter only tangentially.  If he did steal that tweet, it was a dick move, but it’s important from an ethical standpoint only when looking at the bigger picture:  If he stole it, he’s misrepresenting that it is his at the very least, and misrepresenting and affirmatively restating to the media that he handled this case at worst.  If he didn’t, there’s a chance the amount of information he put out on international media is such that it could lead to the identification of his clients and their legal issues, the records related to which are sealed by the court, and have another possible violation of our Rules of Professional Conduct.  In either situation, this one tweet has raised a bevy of possible headaches for Adler.

Now, let me be very clear on this:  Even if Adler stole the tweet and never had the parrot case, there’s absolutely no guarantee his actions would be unethical.  That’s a determination that would be made only based on the specific facts.  He could very well be in safe territory ethically there.  Likewise with the client information: whether his statements cross the line is very fact specific and depends on a lot of circumstances.  Likewise, and because I hate lynch mobs, we also need to be clear that even if the ethical implications exist, they only exist if he’s done anything wrong.  We have no facts from him, just circumstantial evidence and implication.  Mr. Adler, as I’ve said in a prior post, could be completely in the right here.  I’m using this because it’s topical, and because this is a perfect example of why attorneys need to be careful when they use social media.  Because when there’s absolutely any doubt, it’s best to avoid the headache of ethical implications altogether.

As a fellow attorney, I feel sorry for him.  As a mentor to other attorneys, I’ll say this:

Don’t fuck yourself in posting to social media about client shit, and don’t talk to the news about your cases if they aren’t already public knowledge.  In our profession, discretion is the better part of valor.

Tomorrow morning I’ll stick something up on the whole “legal ramifications of Twitter misappropriation,” but I’m not an IP lawyer, so I want to research that first.

-BB