Social Media Ethical Concerns for Appellate Lawyers

This is a guest post by John Browning.  John is a partner in a Dallas law firm, where he handles civil litigation and appeals in state and federal courts. He is the author of multiple books and many articles on social media and the law.

In our increasingly wired world in which over 82% of adult Americans maintain at least one social networking profile—and in which Facebook boasts over 2.2 billion users and Twitter processes a billion tweets every 48 hours—the potential for using social media in ways that violate attorneys’ ethical restrictions looms large. Lawyers across all practice areas have tweeted, Instagrammed, posted, and Snapchatted their way into disciplinary proceedings, judicially-imposed sanctions, and other forms of ethical hot water. But in the comparatively staid, even monastic confines of the appellate world, can appellate lawyers fall prey to the siren song of social media?

The answer is a resounding, if somewhat surprising, “yes.” Appellate lawyers, clerks and other court staffers, and even judges have seen their online activities result in public embarrassment, job loss, and disciplinary action. And while reviewing the record in an underlying case and engaging in legal research may not be typical paths to social media misuse, breaching confidentiality by discussing certain aspects of a case on social media platforms is a very real danger.

Let’s begin with a cautionary tale. Sarah Peterson Herr was a newly-minted graduate of Washburn University School of Law in Kansas in 2010 when she started her first job at the Kansas Court of Appeals as a judicial assistant to Judge Christel Marquardt. About a year later, she was promoted to research attorney, the position she held on November 15, 2012. When she reported for work that day, Herr noticed that there was an unusual amount of security. She soon learned the reason why: that day, the Kansas Supreme Court would host an attorney disciplinary proceeding against former Kansas Attorney General Phill Kline. While serving as attorney general, Kline attracted controversy over the use of his office to investigate and prosecute abortion providers such as Planned Parenthood.

Herr decided to view the oral arguments using the computer in her office, where she also proceeded to “live Tweet” the proceedings, sending out a series of tweets that included the following:

• “You can watch that naughty naughty boy, Mr. Kilein [sic], live! live.kscourts.org/live.php”
• “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag.”
• “ARE YOU FREAKING KIDDING ME. WHERE ARE THE VICTIMS? ALL THE PEOPLE WITH THE RECORDS WHO WERE STOLEN.”
• “You don’t think a sealed document is meant to be confidential. BURN.”
• “I predict that he will be disbarred for a period not less than 7 years.”
• “I might be a little feisty today.”

With that last note, about whether or not she might be too “feisty,” Herr may have made her most salient observation. While she did not associate her tweets with her job, at least some of Herr’s Twitter followers were aware of her position with the Court of Appeals, and now everyone also knew her opinion of Phill Kline—including her accusation that Kline’s “witch hunt” helped lead to a doctor’s murder. A journalist with the Associated Press learned of Herr’s tweets and contacted the Kansas Judicial Center’s public information officer the next day for comment, and shortly thereafter Herr was placed on leave and, falling on her sword and issuing an apology:

I didn’t stop to think that in addition to communicating with a few of my friends on Twitter I was also communicating with the public at large, which was not appropriate for someone who works for the court system . . . I apologize that because the comments were made on Twitter—and thus public—that they were perceived as a reflection on the Kansas courts.

The following Monday, Herr was terminated. Within days, she was referred to the Kansas bar’s disciplinary body by the clerk of the appellate courts, and in January 2014, Herr was found to have violated Kansas Rules of Professional Conduct 8.4(c) (about engaging in deceit or misrepresentation) and 8.4(e) (about implying on ability to influence a government agency). She received an informal admonition and became a cautionary tale for the Digital Age.

Even appellate judges can misstep or overshare on social media platforms. In November 2017, Ohio Supreme Court Justice Bill O’Neill was also a Democratic candidate for governor of Ohio. On the national landscape, U.S. Senator Al Franken of Minnesota was embroiled in a highly publicized scandal involving his alleged sexual misconduct with radio host Leeann Tweeden during a 2006 USO tour. Inexplicably, Justice O’Neill felt compelled to weigh in on what he described as the “national feeding frenzy about sexual indiscretions” with a “too much information” Facebook post about his own sexual history. Saying it was “time to speak up on behalf of all heterosexual males” and expressing that he would “save my opponents some research time,” Justice O’Neill posted the following:

In the last fifty years I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous personal secretary to Senator Bob Taft (senior) who was my first true love and we made passionate love in the hayloft at her parents barn in Gallipolis and ended with a drop dead gorgeous red head who was a senior advisor to Peter Lewis at Progressive Insurance in Cleveland.

O’Neill’s Facebook post led to an immediate backlash, including from his own party. O’Neill had already been widely criticized for his refusal to resign from the Supreme Court while openly proclaiming his candidacy for governor. Ohio Chief Justice Maureen O’Connor stated “No words can convey my shock. This gross disrespect for women shakes the public’s confidence in the integrity of the judiciary.” Justice O’Neill deleted his post but posted new comments on Facebook, at first lambasting his critics. O’Neill eventually posted an apology, but the damage was already done.

Appellate lawyers and judges should not only be aware of the ethical risks presented by their own misuse of social media, they also have to be mindful of what their lawyer and non-lawyer staff might be posting. Appellate courts, including the Supreme Court of Texas, have begun implementing social media policies for that reason. Courts’ internal handling of matters before them are confidential, and courts must balance the First Amendment freedoms of current and prospective court employees with the courts’ legitimate interest in protecting the integrity and efficiency of their work. The online activities of court employees can implicate or even threaten multiple ethical obligations, including the duty to maintain confidentiality, the duty to avoid conduct that would jeopardize the integrity and independence of the judiciary, and the duty to avoid any conduct that would cause a reasonable person to question the impartiality of the court.

One current lawsuit illustrates the dangers of court staffers’ social media activity when they communicate in such as way as to make their affiliation with an appellate court known. In May 2018, Olga Zuniga—a former secretary to Court of Criminal Appeals Judge Kevin Yeary—filed a federal lawsuit complaining that she had been fired from her job because of Facebook posts in which she criticized President Trump and other Republican politicians while praising Democratic politicians. According to the lawsuit, Zuniga had worked as a career legal secretary in state government, including at the Texas Attorney General’s Office, and had been an executive assistant at the Court of Criminal Appeals since 2003. In November 2016, Zuniga alleges Judge Yeary “counseled” her about her Facebook posts critical of Republican figures. Zuniga maintains that Judge Yeary’s periodic reviews of her Facebook activity continued throughout 2017, with Judge Yeary expressing “disapproval” of her politically-charged posts. Ultimately, according to Zuniga’s lawsuit, after again disapproving of posts Zuniga made in September 2017 critical of stances taken by both Governor Greg Abbott and Lt. Governor Dan Patrick on immigration-related issues, Judge Yeary terminated her on October 11, 2017.

Judge Yeary and the Court of Criminal Appeals responded with two motions to dismiss, filed on July 30, 2018 and March 28, 2019 respectively. In both motions, among other arguments, the defense pointed out numerous examples of Zuniga’s Facebook posts associating herself with the Court, its activities, and its personnel, as well as posts containing lewd content, to demonstrate her use of Facebook while at work on her official state computer. The motions also argued that dismissal was warranted based on the fact that, as someone employed in a judge’s chambers, Ms. Zuniga was an employee with access to confidential information, and one whose job functions required trust and loyalty. Moreover, Ms. Zuniga’s online comments suggesting that partisan elected judges could not be trusted if they belonged to a certain political party undermined the Court’s interest in maintaining authority and credibility. In addition, the motions to dismiss also argued that, as Zuniga herself had admitted, there were other factors leading to her termination, such as attendance problems, inaccurate leave reporting, the failure to complete assignments, and other job performance issues unrelated to any dispute over plaintiff’s political views. The court has not yet ruled on either of these dismissal motions.

In today’s digital environment, social media allows commentators incredible reach with the blinding speed of a search engine. Consequently, appellate attorneys—like their counterparts in other practice areas—need to be mindful of that when they express opinions online or on social media platforms, even when they think they are acting in a purely personal capacity. Lawyers face heightened public and ethical scrutiny when they make statements on social media, so if you wouldn’t put it in a letter or pleading, you probably shouldn’t post it on Facebook or tweet about it.