Risk Update

Conflicts Roundup — Social Media Positional Conflicts + Conflicts Doing Business with Clients

Conflicts May Lurk in Social Media; Think Before Posting” —

  • “An attorney shares an article about a high-profile lawsuit against a construction company on his personal Facebook page with a comment: ‘It’s pretty obvious this company is in some big trouble!’ The next day, that attorney receives a furious phone call from his law firm’s managing partner, saying that the firm was pitching to represent that construction company in the lawsuit. Now, the law firm has lost the opportunity because the company’s owner discovered the public social media posting.”
  • “Even if the lawyer doesn’t identify their firm name in their personal social media, others may be able to find them online and deduce their affiliation. Because of this, it can be hard for attorneys to disassociate from their profession on social media, even for ‘personal accounts.'”
  • “One issue implicated by the pervasive use of social media is the possibility that the attorney’s social media posts could be seen as creating a ‘positional’ conflict. A positional conflict is one that may exist, for example, if an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Typically, such conflicting representations are not per se inappropriate unless one representation has an adverse impact on the other, but the bar rules suggest that pursuing conflicting issues before an appellate court could be improper.”
  • “Social media is generally not a place for balanced, well-reasoned and detailed assessments of issues.”

Doing Business with a Client – Rule 1.8 Conflicts Arising from Transactions with Clients – Enforceability of the Transaction” —

  • “Calvert v. Mayberry, 2019 CO 23. On the facts of Calvert v. Mayberry, the plaintiff-attorney (“Calvert”) was unable to rebut the presumption and summary judgment was entered against him, voiding the contract he sought to enforce. In this case, the Supreme Court of Colorado held that a contract between a lawyer and a client that violates Rule 1.8 is presumptively void, although an attorney can rebut the presumption.”
  • “Mayberry initially engaged Calvert to help secure title to her home in her name, which Calvert successfully accomplished. Later, Calvert gave Mayberry approximately $193,000 in various increments to help renovate the house. Calvert then attempted to secure the loan using Mayberry’s house as collateral. The repayment and security agreement were never put into writing and Calvert never advised Mayberry to seek independent legal counsel in connection with the transaction. The Colorado Supreme Court found Calvert’s conduct to be a violation of Rule 1.8 and disbarred him before this case commenced.”
  • “Violation of a Rule of Professional Conduct can have both expected and unexpected consequences. In Colorado, violation of a Rule can result not only in disciplinary action, but may also void a contract. This is not true in all jurisdictions, so lawyers should consult the law of the state in which they’re licensed. In any event, a lawyer should take great care when entering into any business relationship with a client. Such arrangements carry multiple risks for claims of conflicts, breaches of duty, and claims of undue influence by the lawyer, which can give rise to civil liability or disciplinary consequences, or both.”