As reported by the Associated Press, a Kansas court research attorney was fired on November 19, 2012 for comments that she posted to her Twitter account about a Kansas former attorney general.
Sarah Herr, a research attorney for a Kansas Court of Appeals judge, apparently posted the comments about former Attorney General Phil Kline, while he was testifying in front of the Kansas Supreme Court regarding an ethics hearing into his conduct in investigating abortion providers.
One tweet said: "Why is Phil Klein (sic) smiling? There is nothing to smile about, douchebag." Another tweet stated that she believed that Kline would be disbarred by the court for seven years for his conduct.
The Associated Press reported that Herr had been fired and that her case had been referred to other offices for possible ethical violations.
The day after the tweets were made, Herr apologized for making the comments publicly, and said that she did not realize her posts were readable by all Twitter readers and that she understood her posts may have reflected badly on the state's court system.
Firings over Facebook and other social media posts have been making the headlines recently. In Karl Knauz Motors, Inc. & Robert Becker, the NLRB issued its first ruling upholding a firing for a Facebook post because it determined that the post about an auto accident at a nearby Land Rover dealership was not related to the terms and conditions of Mr. Becker's employment, who was employed at a different dealership. Although the company's social media policy was determined to be overly broad and was therefore struck down, the firing was lawful.
Attorneys, however, have to think beyond just their own employer's social media policy. They have additional considerations to keep in mind when considering whether to post a comment on social media, and that is the rules of professional conduct.
In the instant case, judges and judicial staff are required to refrain from commenting on pending cases. Posting comments about someone and their testimony, particularly while the person is giving their testimony, clearly runs afoul of this prohibition. Moreover, predicting that a punishment will be imposed, and what that might be, also clearly violates an attorney's obligation as part of the judicial staff to refrain from comment on a pending case.
Attorneys in private practice are also at risk. As the Miami Herald reported, a criminal attorney posted a picture of her client's leopard-print underwear to her Facebook account, which then resulted in a mistrial for her client, her being removed from the case, and ultimately fired from her job. Her client's family had brought him a change of clothes during the trial, and during the officers' inspection of the clothes, the attorney took a picture of the leopard-print underwear, posted it to her Facebook account, and commented that "the client's family believed the underwear was proper attire for trial."
Importantly, the Florida attorney's Facebook account was private and could only be seen by her friends, but someone who saw it printed out the page and reported it to the judge presiding over the trial.
Attorneys have multiple professional responsibilities to their clients that were violated by this behavior, including the duty of loyalty, respect and confidentiality, and they must also refrain from conduct that is prejudicial to the administration of justice.
Both of these cases are stark reminders for attorneys to be circumspect in what, if anything, they post to social media that is related to their work, as you may not only be violating your employer's policy but you may be violating the rules of professional conduct that govern all attorneys.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.