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Public Policy of the Brain Injury Network
Approved by the Board of Directors 9-8-13
Attorney Solicitations Involving the Brain Injury Community on Social Media Platforms
We find it highly objectionable and unethical that certain attorneys are seeking out individuals with acquired brain injuries (from tbi, etc.), are enticing them to publically share their stories on the attorneys’ websites and blogs, and are further distributing said stories to other social media such as Facebook and YouTube.
The Attorney-Client Relationship
It is a fundamental principal in law that in the client-lawyer relationship the attorneys maintain confidentiality relating to that representation in the absence of a client’s informed consent to the contrary. Attorneys have this special duty because they are party to what may be embarrassing or legally damaging information they secure from their clients. Therefore attorneys should not go about revealing information about their clients or potential clients for that matter.
Every attorney has a duty to maintain inviolate the confidence and to preserve the secrets of his or her client. For example, please see American Bar Association Center for Professional Responsibility Rule 1.6 “Confidentiality of Information.” See also California Business and Professional Code Section 6068 Subdivision (e)(1). See also Confidence Title Co. v. Superior Court (1979) 92 Cal App 3d 934, 945 [155 Cal. Rptr. 393]. There are exceptions to the rule, but the exceptions have to do with the public good. (Preservation of life and physical integrity is one exception to the confidentiality rule. If the attorney comes into information and could possibly prevent certain death or substantial bodily harm then he or she may make disclosure of the client confidence.) So the exceptions to the rule have to do with the higher good, not the attorney’s strategic desire to self-promote his or her commercial business interest.
Informed Consent and Mental Competency
Informed consent means a person has the mental ability and memory to make judgments that are in his or her own best interests. Mental competency means that an individual is able to comprehend, remember, and in a general way understand the situation he is in. It also means he or she has the ability to tell the truth, and further, it means that he or she can understand the potential consequences of any act he or she has an interest in. An individual who has mental competency has the ability to give informed consent. Hence, such an individual could give proper consent to an attorney for the attorney to share that individual’s private, confidential story on the attorney’s website or other social media. But we arrive back at the idea that even though the individual may be giving a kind of basic informed consent, many individuals, especially people with brain injuries, may not understand the legal ramifications. They may not contemplate the long-term effects of their sharing their stories on lawyer websites. This is especially true where the attorney aggressively “takes ownership” of the stories and shares the stories repeatedly on additional social media platforms such as Facebook.
Additionally, there are certain individuals with acquired brain injuries who do not have complete competency in the first place. They do not understand their basic rights let alone additional ramifications of their actions. In our opinion it is especially egregious for any lawyer to entice these individuals to share their stories on his or her website or blog, because these particular individuals need even more protection than other individuals.
Firstly, we are stating that the presumption should not be made that every person with an acquired brain injury has sufficient mental competency to give informed consent. Secondly, we are stating that we know there are particular members of our community who clearly lack competency and it is especially heinous to take advantage of them for commercial reasons. Thirdly, for individuals with brain injuries who are competent to make their own informed decisions, we still do not think that they should turn over ownership of their “survivor stories” to attorney-controlled websites, because they are being used for commercial reasons by the attorneys involved.
In all cases the attorney has the duty to explain to the client or potential client why it is in an individual’s best interest is to share the client’s or potential client’s private, confidential story on the attorney’s website or his other social media platforms. The question really is, is it in the person with the brain injury’s best interest to be sharing confidential, private, perhaps embarrassing details publically? Generally speaking the answer would be no, especially if the individual has possible or pending legal matters.
In the final analysis, the sharing of a person’s private, confidential, and even intimate story with an attorney on his commercial blog, website or social media such as a YouTube video does not benefit the client or proposed client. It benefits the attorney’s self-interest in publicizing himself and his law practice. It is not in the best interests of individuals with brain injuries to share their stories on an attorney blog, website, or other social media modality (e.g., Facebook). So we at the Brain Injury Network frown on the using individuals with acquired brain injuries in this manner.
Commercial Solicitation for Attorney’s Business Services
However, until such time as the sort of attorney conduct described above is found to be unacceptable in every legal jurisdiction in the land, it should be further noted that when lawyers engage in this sort of story sharing of members of the brain injury community, in reality this is actually a commercial solicitation for the attorney’s business services. A solicitation is a communication by any means concerning the availability of a member or law firm to former, present, or prospective clients. As such the rules for solicitations come into play.
When an attorney does seek out and secure survivor stories and shares these as communications with the general public, these are solicitations for business and must be characterized as such. It should be clear from such brain injury survivor story-sharing communications that they are solicitations from the attorney for business. As solicitations all of the rules regarding attorney soliciting and advertising must come into play. For example, all such solicitations should say “Advertising Material” at the beginning and ending of any recorded, electronic, text, or other communication.
Recommendations to the American Bar Association (ABA), the State Bar Associations, Ethics and Professional Conduct Advisory Committees, and Legal Ethicists
We urge the American Bar Association to classify the kind of lawyer conduct described above as unethical in its Model Rules of Professional Conduct. We urge ethics and professional conduct advisory committees to create any rules necessary to prevent this new form of “ambulance chasing” that we are seeing on social media now. We hope that state bar associations in every state of the United States will take action to make this sort of client disclosure or “potential client” disclosure and advertising unethical misconduct, and that it will be grounds disciplinary action in state bar disciplinary hearings.