When I first wrote about “L'Affaire Colangelo,” the social media-based soap opera involving Bryan Colangelo, former-Philadelphia 76ers president of basketball operations, my focus was on its lesson: that lawyers and their staff should never share confidential client information with family members or others. Otherwise, such “unguarded talk” could lead to very serious consequences, as Colangelo's demise confirmed.

But as I said then, there were other lessons for attorneys in Colangelo's rapid fall. These lessons become clear when you consider some of Colangelo's quotes in response to the revelations that five Twitter accounts linked to him had disclosed sensitive or confidential information about his team and its players.

  • “Like many of my colleagues … I have used social media as a means to keep up with the news.”
  • “I have never posted anything whatsoever on social media.”
  • “I vigorously dispute … that my conduct was in any way reckless.”
  • “At no point did I ever purposely or directly share any sensitive, nonpublic … information.”

I removed all basketball- or team-related references from Colangelo's quotes to permit you to consider his comments in the context of the many lawyers who assert that they know little, or know nothing—about social media—and believe that you do not have to know or learn anything about social media. 'Au contraire.

Lawyers cannot use ignorance as a defense to social media missteps because ignorance is merely another word for incompetence, and lawyers must be competent in their professional actions. That's why the American Bar Association amended Comment 6 Model Rule of Professional Conduct 1.1 in 2012 to explain that “competence” means that “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Pennsylvania adopted this amendment in 2013.

Many lawyers shrugged at this rules change, and continued to ignore discussions about social media and its implications for clients—and for them. After all, they reasoned, if they don't use social media, or simply don't use much technology, they aren't in any danger.

But if Colangelo's saga demonstrated anything, it's that anyone, including lawyers, can get into a lot of trouble—perhaps lose their job—despite claiming technological ignorance as a defense.

As social media takes over more nuances of our lives, it is easier than ever for lawyers, and judges, to get into that kind of trouble.

Consider Jefferson County, Kentucky District Court Judge Sandra McLaughlin, who shared a news story on Facebook about a Jefferson County district court case, commenting that “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.” Those comments led to a public reprimand for the Judge.

Or consider attorney Aaron Schlossberg, who ranted about Spanish-speaking employees at a New York restaurant. Schlossberg never thought that another customer would film his rant and post it on Twitter, where it, quite predictably, went viral. While Schlossberg has not been publicly disciplined for his comments, his conduct has had an enormous impact on his reputation, as Google confirms.

First, when you perform a Google search for “attorney Aaron Schlossberg,” you will discover pages of results, the vast majority focusing on his comments, not on his professional skills or successes. Then look at Schlossberg's Facebook page, which appears prominently in the results. Schlossberg now has a 1.1 rating based on the opinions of 2,367 people. It is a safe guess that most of those opinions are based on Schlossberg's tirade, and are not clients or others who personally know him.

While McLaughlin's and Schlossberg's conduct have garnered broad attention, most attorneys' Colangelo-like failings are less newsworthy. While there are many ways lawyers' social media ignorance surfaces, there are four primary traps for the unwary:

  •  Believing in the myth of privacy;
  •  Forgetting that the Rules of Professional Conduct apply to social media;
  •  Misusing or failing to use social media as a discovery or investigatory tool; and
  •  Failing to counsel clients about their use of social media.

The myth of privacy—this is the idea that social media accounts are private, cannot easily be discovered or that no one except perhaps “friends” will ever know what we say online. In other words, it is the erroneous belief that when you are in a zone of privacy when you write a blog post or share your views on Facebook. That is simply not the case. There is a reason “social” is social media's first name.

An example of this myth of privacy is former public defender Anya Cintron Stern, who learned about it in 2012 when she wrote a Facebook post that included a photo of the leopard print underwear her client's family gave him to wear at his murder trial. Although her Facebook page was “private,” someone who saw the post informed the trial judge, who declared a mistrial.

Second, there are countless other examples of lawyers who do not realize that the Rules of Professional Conduct apply to their social media activity. Despite their ignorance, these attorneys should consider the Pennsylvania Bar Association committee on legal ethics and professional responsibility's Formal Opinion 2014-300 (“Ethical Obligations for Attorneys Using Social Media”), which concluded:

  • Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information.
  • Attorneys may connect with clients and former clients.
  • Attorneys may not contact a represented person through social networking websites.
  • Although attorneys may contact an unrepresented person through social networking websites, they may not use a pretextual basis for viewing otherwise private information on social networking websites.
  • Attorneys may use information on social networking websites in a dispute.
  • Attorneys may accept client reviews but must monitor those reviews for accuracy.
  • Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements.
  • Attorneys may generally endorse other attorneys on social networking websites.
  • Attorneys may review a juror's internet presence.
  • Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his official duties.

This opinion provides an excellent analysis of the issues surrounding attorneys' and clients' use of social media, along with advice about how attorneys should address social media in an ethically compliant manner.

Third, attorneys often do not realize that the discovery of social media is a tool that they should use, or consider using, in every case, regardless whether they represent a plaintiff or defendant, or a person or a corporation. While most news reports focus on how plaintiffs reveal damaging information on social media, or how criminals post information that helps lead to their arrest, corporations also misuse social media. Like individuals, corporations at times post information not intended to be public, or that can be damaging in future litigation. As a result, every attorney should research every opponent's social media, including blogs, Facebook, LinkedIn, Instagram and YouTube.

Finally, lawyers must counsel clients about their social media use, and the implications of their activities. Lawyers have always counseled clients not to discuss their cases with others, and not to destroy physical evidence. The advent of social media merely transforms that obligation to the electronic/online world.

Lawyers must advise clients to avoid posting information online that could impact their cases. Similarly, just like clients may not destroy physical evidence, so too must they no destroy electronic evidence. In that regard, the fact that the information is electronic is irrelevant, the advice remains the same.

Lawyers have always had an obligation to protect confidential information. The advent of social media means that they must heed that advice in a different forum. Otherwise, they may find themselves suffering a fate like Colangelo's.

L'Affaire Colangelo confirms that sports are not only a metaphor for life, they also offers lessons about what lawyers must never do.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of “Fee Agreements in Pennsylvania” (6th Edition) and author of “Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms” (Second Edition), published by the Pennsylvania Bar Institute. Contact him at [email protected].