If you “like” it, you own it

The short story: If you “like” a statement on social media you could be deemed to have made that statement. At least that’s what Indiana says. Here are the details…

It’s obvious that lawyers have to answer for the statements we make on social media. If you lie you could run afoul of a variety of rules: a misrepresentation in your marketing might be a violation of the advertising rules, if you lie in connection with your representation you might violate Rule 4.1, stuff like that.  It also isn’t much of a surprise to say that a lawyer is going to be ethically responsible for statements that they recirculate. If you retweet a statement that you know is false, you are going to be considered to have made that statement and you’re going to have to deal with an ethics grievance if the statement violates the rules. You own the information you send out to the internet.

But I just read an extension of that concept that surprised me. A state is trying to affix ethical liability on a lawyer for statements they merely “like.”

The Indiana Supreme Court Disciplinary Commission issued Opinion #1-20 in July of 2020 entitled “Third Party Comments or Tags on a Lawyer’s Social Media.” In that opinion they stated:

An attorney who responds to or “likes” a third party’s comment that contains prohibited content could be deemed to have adopted the third-party comment. Such action could subject the attorney to a rule violation. The failure by the attorney to delete prohibited content could be considered acquiescence and expose the lawyer to discipline.

A lawyer should also be careful to adjust privacy settings to avoid being “tagged” to improper content which could show up on the lawyer’s page and thereby be deemed adopted by the lawyer.

This is an expansion of existing concepts. In the past, we owned whatever we shared. Now, we could own whatever we like. Let’s see how this might exist in the practice.

If someone makes a claim about your services that violates the rule and you like it, you would be deemed to have made that statement.  Example: A prior client tweets, “Stuart Teicher got me out of a DUI and I’m sure he can do it for you too.” That probably violates the rules because it could “lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.” Rule 7.1, Comment [3]. If you “like” that statement you are going to be deemed to have allowed it and you are going to get into trouble.

Same issue with tags. Example: A lawyer, who has been practicing for 6 months, has a client who writes this post on the client’s Facebook page and tags the lawyer: “Jane Smith has been at the law game for a decade. She’s awesome.” That’s not true and, depending on whether it also ends up showing up on your social media page, you might be deemed to have adopted the statement.

Of course, whether something is problematic ultimately depends in the circumstances. But you can see the expansion of the idea here. When social media started it was clear that if you said something you owned that statement. Then there came the day when you owned other people’s statements that you recirculated. Well, today you could own other people’s statements that you “like,” or that “tag” you. 

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