My children don’t always use actual sentences when they speak with me. Occasionally I get a “sure” or “whatever.” More often than not, however, it’s a series of audible grunts. Over the years I’ve been able to decipher these noises and I’ve come to realize that they are primitive, albeit valid attempts at communication. That’s what passes for communication at the teenage years. Grunts, moans, maybe even a raised eyebrow. When your kids are that age, you’ve got to expand what you’ll accept as a communication or you might not interact with them at all.
Just as a parent needs to broaden their view of what constitutes a communication, so too does a lawyer. A variety of sources confirm that the definition of what constitutes a “statement” or a “communication” that would trigger the rules is expanding. Consider the following case.
In 2016 a Missouri woman was indicted for suspected support of Islamic State. According to the Wall Street Journal, Safina Roe Yassin, “called for the killing of U.S. law enforcement employees and military members by retweeting posts that contained their detailed personal information…According to the indictment, one of the tweets she retweeted contained the line, Wanted to kill. According to the government, this retweet and other social media postings by Ms. Yassin signaled her active support for ISIS and her intention to communicate threats on their behalf.”
The journal went on to report, “A novel issue is how the law should treat retweets, a feature that allows Twitter users to repost other people’s tweets. In a court filing last month, Ms. Yassin’s lawyer…said his client was ‘merely reporting someone else’s statements.”
Here’s why I think this is important. It’s the first case I’ve seen where a prosecuting agency is trying to affix liability on a person as a result of something they shared on social media. It’s the first case I’ve seen where the prosecution is claiming that by redistributing the content, the retweeter is primarily responsible for the statement as if they said it themselves.
This isn’t the first time someone is getting in trouble because of something they’re posting on the internet— there are lots of cases where people face liability for making some comment on social media. but I don’t recall any other criminal matter where the defendant was being charged with being primarily liable for distributing another person’s content. Here, the defendant redistributed someone else’s statement, and the re-distributor is, therefore, being considered to have uttered the offending statement.
Ultimately, this case may fail. There are substantive criminal law issues, as well as first amendment concerns. But I’m not bringing this up because of the substance of this indictment. Rather, this case is about the expanding definition of a person’s “statement” or a “communication” and the attorney ethics implications.
If a prosecutor on the criminal world is taking this position, then it’s only a matter of time before a prosecutor in an ethics context takes the position. I can envision some ethics investigator saying that a lawyer’s retweet of someone’s statement constitutes that lawyer’s statement, or “communication” under the rules. The attorney ethics implications are significant. Consider the following hypothetical:
You’re representing a client in a particularly nasty land use application. The client wants to demolish an historic home and the local land use board is opposed to it. There is a lot of hostility between your client and the land use board because the board wants to save the structure. In an effort to put pressure on the board, your client fabricates the following statement and tweets it one evening, “East Bumble board turned down my application for a demolition permit. I don’t care—starting construction tomorrow! Firing up the bulldozer!” You retweet that statement.
You know the statement isn’t true because you were at the meeting earlier in the day where the board tabled the application without denying it. You also know that your client is overseas and has no intention of actually starting construction. He told you a few hours ago that he was going to take to Twitter just to “rattle the board’s cage a little.”
However….one of the land use board members follows you on Twitter and sees the retweet. He believes that your client might actually take the action described and, to avoid the destruction of a potentially irreplaceable historic structure, he directs the board attorney to immediately file for an injunction against your client, which she does. The board incurs a significant cost.
Could this be a misrepresentation that’s actionable under the rule? Consider that Rule 4.1 states (in part), “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person…” Does this statement qualify?
- Yes, it’s false— you know the statement is completely fabricated and that there isn’t going to be any construction
- Yes, it was made to a third person—it wasn’t just communicated to a third person, it was communicated to a whole lot of third persons
- Yes, it was material— the other side relied on that statement when it decided to engage in the considerable expense of filing suit
- Yes, you “knowingly” disseminated the information— that was your state of mind because you knew what you were doing.
The obvious question is whether you can be said to have made the statement. If the ethics authorities adopt the broader position that the prosecution took in the Yassin case, then yes. In a world where a retweet constitutes a person’s statement, you could be deemed to have made that false statement.
This issue would also arise any time a lawyer might make a “communication” as well. Rule 7.2(a), states that, “a lawyer may advertise services through…electronic communication…” If your partner posts on Facebook a statement saying “I am ready to accept new clients. Call me now for a free consultation!” If you share that, then you might be responsible for making the electronic communication. That might not be a problem, unless one day you share something that is not true, and you violate Rule 7.1.