Perspective: Should lawyers restrict controversial social media postings?

 

Recently, Jill Filipovic, a litigation associate at a major New York law firm, caused a minor media sensation with a post to Twitter—

, October 24. On arrival in Dublin, Ireland, on a flight from the United States, she discovered in her bag a note from the Transportation Security Administration (TSA) that read, “get your freak on girl,” apparently referring to a sex toy in her luggage. Her tweet about the note was

by

and a host of other media outlets. The TSA agent responsible for the note was reprimanded.

The story did not end there. Instead, at least some commentators

something beyond the inappropriateness of the TSA agent’s action, questioning, “Should a lawyer at a large law firm ever tweet about vibrators, or anything else of such a personal nature, even if when doing so doesn't grab widespread attention?”

A supervisor at Filipovic’s law firm stated that the firm was “comfortable” that its policies had not been breached since the post did not involve any client references or confidential material. Lawyers at other firms, however, have been reprimanded—and even terminated—for posting “racy” or politically controversial materials to the Web.

Professional

rules generally require that lawyers protect client confidences and secrets; that they avoid false and misleading statements, and that they foreswear actions that are prejudicial to the administration of justice, such as undue pretrial publicity that may affect a jury pool. But these rules do not prohibit lawyers from engaging in political and social discourse. Indeed, over the centuries, practicing lawyers have run for office; supported candidates; promoted political initiatives; lectured and taught; written books and social commentary, and much more. Social media outlets represent just one more way in which lawyers can participate in the public “conversation” that shapes our society.

Although the subject of “sex toys” may not strike all as “lawyerly,” attorneys are people, subject to the full range of normal human behaviors. In the Filipovic case, of course, “outing” inappropriate security behavior may serve a vital social purpose. Individual lawyers and law firm supervisors must use discretion and good judgment in determining the reputation they wish to develop through online activity. But even if postings are silly, or even offensive to some, the profession should hesitate before imposing a professional ethics gag on what lawyers can write on the Internet.