Think before You "Speak": What Lawyers Can and Cannot Say in the Digital Age

By Nahrstadt, Bradley C.; Rogers, W. Brandon | Defense Counsel Journal, July 2013 | Go to article overview

Think before You "Speak": What Lawyers Can and Cannot Say in the Digital Age


Nahrstadt, Bradley C., Rogers, W. Brandon, Defense Counsel Journal


Membership in the bar is a privilege burdened with conditions.

Justice Benjamin Cardozo

ATTORNEYS PERFORM nearly all of their work through speecheither through written briefs or the spoken word. As Frederick Schauer poignantly declared:

   As lawyers, speech is our stock in trade.
   Speech is all we have. Our tools are books
   and not saws or scalpels. Our product is
   argument, persuasion, negotiation, and
   documentation, so speaking (by which I
   include writing) is not only central to
   what the legal system is all about, and not
   only the product of law as we know it,
   but basically the only thing that lawyers
   and legal system have. (1)

Although words are our stock in trade (our apologies to Abraham Lincoln, who famously declared that a lawyer's time and advice are his stock in trade), we lawyers are not free to say whatever we want. Our comments--both orally and in writing--must be tempered and must comport with the Rules of Professional Conduct that govern our profession. Indeed, traditional theory has held that attorneys agree to many rules and regulations restricting attorney speech as a condition of being admitted to the bar.

Given the myriad rules and regulations that apply to attorney speech, lawyers often have questions about what they can and cannot say, especially when it comes to new forms of electronic communication such as Facebook, MySpace, Twitter and the like. This article discusses the rules governing attorney speech and provides some guidance about what lawyers can (and cannot) say on-line, about judges and to and about opposing counsel.

I. On-Line

In today's day and age, there can be no doubt that social media is part of the fabric of our lives. Consider these statistics:

38,000,000 people in the U.S. age 13-80 said their purchasing decisions are influenced by social media, a 14% increase in the past six months. (Source: Knowledge Networks)

1,000,000 people view customer service related tweets every week, with 80% of them being critical or negative in nature. (Source: TOA Technologies)

152.1 million people in the US will use Facebook this year. (Source: eMarketer)

15.3--the number of hours per week that the "average" Internet user spends online. (Source: eMarketer)

93% of American teens use the Internet regularly. (Source: Teen and Young Adult Internet Use. Pew Research Center)

45% of American adults say that the Internet plays an important role in their lives. (Source: Pew Internet)

59% of Internet users use at least one social networking service, compared to 34 percent who did in 2008. (Source: Pew Internet)

850,000,000 monthly active users for social networking giant Facebook, up from 500 million active monthly users last year. (Source: TechCrunch)

96% of Generation Y had joined a social network by 2010. (Source: www. socialnomics.com)

#1 activity on the Web is social media. (Source: www.socialnomics.com)

1 out of 8 couples married in the U.S. last year met via social media. (Source: www.socialnomics.com)

80% of companies use LinkedIn as a primary tool to find employees. (Source: www.socialnomics.com)

#2 largest search engine in the world is YouTube. (Source: www.socialnomics. com)

200,000,000+ Blogs on the Internet. (Source: www.socialnomics.com)

54% of bloggers post content or tweet daily. (Source: www.socialnomics.com)

Generation Y and Z consider e-mail passe. In 2009 Boston College stopped distributing e-mail addresses to incoming freshmen. (Source: www.socialnomics.com)

Years to Reach 50 millions Users: Radio (38 Years), Television (13 Years), Internet (4 Years), iPod (3 Years). Facebook added 100 million users in less than nine months; iPhone applications hit 1 billion in nine months. (Source: www. socialnomics.com)

If Facebook were a country, it would be the world's 3rd largest. …

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