William & Mary Law Review


Emily R. O'Hara


As social media’s prevalence and usage grows within the United States, people and organizations capitalize on new media to send news to users. In 2017, 67 percent of people consumed their news from social media websites, and the rate continues to grow. Local and national news sources bring newsworthy stories to active users on social media sites such as Twitter, where users can communicate and interact with one another to promote ideas and spread information. These online accounts cover not only mundane, day-to-day news, but also salacious stories relating to civil and criminal lawsuits.

In April 2018, attorney Neal Katyal used his Twitter account to advocate for his client leading up to oral argument before the Supreme Court in Trump v. Hawaii. Katyal posted personal statements voicing his opinion about the case and retweeted posts linking to news articles and amicus briefs that supported his argument. With nearly 284,000 followers, many people could view and perceive the arguments Katyal would make at oral argument. Katyal’s persistent tweeting enabled him to have “extra” argument time in the court of public opinion, as advocates are allowed only a specific number of minutes to argue before the Supreme Court.

Attorneys also post statements on Twitter referring to criminal cases when an alleged offender stands trial for a crime in a local venue. Scholars and practitioners voice additional concerns about an attorney’s extrajudicial statements made during criminal trials in local venues because laypeople serve on juries. The media’s publishing of a lawyer’s out-of-court comment could prejudice jurors before and during a trial. Because of this concern, the American Bar Association (ABA) enacted Model Rule of Professional Conduct 3.6 (Rule 3.6), which attempts to limit the types of speech attorneys can make while involved in litigation.

fair trial and its own interest in the fair administration of justice, courts and disciplinary boards must balance these interests against an attorney’s First Amendment free speech right when determining whether an attorney has violated Rule 3.6. Comment 1 to Rule 3.6 notes that a lawyer’s statements have value, as a lawyer is often in the best position to disseminate pertinent case-related information to the public. Attorneys may need to release this information to expose government abuse, ensure that citizens remain safe, or promote discussions about changing public policy. To effectively balance these rights, the standard described in Rule 3.6 requires courts and disciplinary boards to consider various factors in determining whether an attorney’s statement results in a “substantial likelihood of prejudice” to the proceeding. By requiring courts to consider the factors, the ABA and the adopting states ensure that the rule is narrowly tailored to protect as much attorney speech as possible while still promoting state and defendant interests.

For over thirty years, these factors have enabled decision makers to balance these rights effectively when faced with attorney statements published in traditional media outlets. Yet in a new age of Internet communication and social media, the original factors noted in the ABA rule and comments do not sufficiently protect attorney speech posted on online forums. This Note argues that a new technological-focused comment to Rule 3.6 will remedy this problem.

In today’s online world, scholars and practitioners constantly remind attorneys to take caution when posting statements online, because confidential and inappropriate information will spread across the web and reach large numbers of people at accelerated speeds. With this perception prevalent within the legal community, a judge—ruling on a case involving attorney statements made on social media—could find that there is a substantial likelihood that the online statements will prejudice a trial.

Although Internet communications and social media outlets give users the opportunity to spread information to more people at faster rates, it does not necessarily follow that all attorney statements posted online about litigation will be seen by potential jurors within the court’s jurisdiction. Numerous factors make it less likely that a potential juror will see an online statement, including the attorney’s social media account privacy settings, the attorney’s number of followers, the functions the attorney uses on a specific medium to make a statement more searchable, and the ability of a potential juror to be inundated with statements from nonfollowers.

This Note argues that by creating a new, additional comment to Rule 3.6 that lists the factors to consider when faced with an attorney’s social media statement, judges will be in a better position to determine if an attorney’s statement reaches and prejudices a jury. The inclusion of such factors can aid decision makers who may be unfamiliar with how attorneys can protect information on social media. The new considerations, designed for a new age of social media use, can help shift back into place the balancing of rights that judges have achieved when applying the rule to statements presented in traditional media.

In applying Rule 3.6 to social media statements, a judge must first understand how courts have applied Rule 3.6 to traditional media statements and the factors that make traditional media statements different from social media statements. Part I discusses Rule 3.6 and explains how courts apply the rule to statements that lawyers make in traditional-media outlets. Part II describes the problems that derive from a judge’s application of Rule 3.6 to statements lawyers make online. Part III lists and describes new factors for a judge to consider when ruling on a case that involves an attorney’s social media statements. Using these factors, a judge achieves a better balance between an attorney’s speech interests and a state’s interest in obtaining fair and just proceedings. Lastly, Part IV analyzes counterarguments and assures readers that new factors will not unjustly promote lawyer speech interests at the expense of state interests.