Is Doxing Unethical For Lawyers?
An intriguing question...
Just like Nero, the ABA and state ethics regulators are fiddling around with trivial ethics issues – like whether a lawyer collecting a shared fee must put it in trust for the other lawyers or duplicate rulings ethics opinions on cloud computing, while a burning question faces our profession: is doxing unethical for lawyers?
For those unfamiliar with the term, doxing (or doxxing) is the practice, facilitated by the Internet, of researching and disseminating publicly available personal information about an individual, frequently for purposes ranging from law enforcement and vigilante justice to less savory reasons such as harassment or vigilante justice. Doxing is nothing particularly new; over the past few years, there have been numerous incidents of doxing — generally by hackers against political figures or celebrities. But as the amount of private information publicly available online increases, doxing is readily accessible to almost anyone carrying a grudge.
Which is one reason why lawyers need to learn more about doxing. After all, the large majority of our clients — particularly those involved in litigation over business deals gone bad or family law disputes — either come to lawyers carrying a grudge against the opposing party or worse, leave carrying a grudge against the lawyer for obtaining a perceived poor result. Moreover, the potential for doxing may arise in discovery, where a party is compelled to produce personally identifiable information about its employees or customers. Just recently, doxing reared its head in the widely-publicized Dakota Access Pipeline standoff, with protesters alleged to have doxed law enforcement personnel on the scene.
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The potential for, and repercussions of doxing are heightened for solo and small firm lawyers. Many solos handle unpopular causes and work from home, making them ideal targets for opponents seeking to shut a case down. Likewise, publicizing negative information about a solo – perhaps a long-ago arrest for DWI or domestic abuse – can deter clients from hiring the lawyer just as much as a poor Avvo or Yelp review.
But when I searched for ethics decisions that deal with lawyers’ obligation — if any — to warn clients about shielding personal information in the course of a case to guard against doxing, or to advise as to whether a client must refrain from doxing opposing parties, I found nothing. Likewise, while I doubt that a lawyer can use doxing for unseemly purposes like extortion, what is the lawyer’s obligation upon discovering that a family law client doxed his soon-to-be-ex-spouse to force her to drop a demand for joint custody or an increase in child-support? What about a situation where a lawyer posts an already filed and public complaint in a controversial case with the client’s home address in the caption? Technically, the lawyer did nothing wrong as the complaint is public — yet, what if the complaint results in making private information about the client more readily available to ne’er do wells who may use it to hack into her bank account?
If you’re a regular reader of MyShingle, you know I’m not a fan of the “mother, may I” approach to legal ethics, where lawyers presume that they can’t engage in an activity — like using the cloud or posting a specialty on LinkedIn without the express approval of regulators. After all, many practices — like cloud computing or giving legal advice on Twitter — can be readily analyzed under already established principles. With doxing, all but the most obvious issues (such as an attorney doxing an opponent purely to harass) are more complex and deserve some guidance from regulators. Of course, since guidance likely won’t be forthcoming for years, next week, I’ll take a crack at tackling some of the ethics issues in Part II of this post.
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Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.comor follow her on Twitter at @carolynelefant.
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