Michal Rosenn, general counsel of Kickstarter. (Photo by Annie Tritt. )


In late January, a Google lawyer posted to her personal Twitter account a photo of herself and several colleagues outside the office of U.S. Senator Dianne Feinstein, D-California, asking the senator to vote against Jeff Sessions for U.S. Attorney General. The Google employees arrived in person, the attorney wrote on her Twitter, because Feinstein’s office phones were down, and the team was “not taking any chances.”

Shortly after, the tweet—which had a clear political slant—was gone. The Google lawyer, Priya Sanger, works on the products and payments team, according to her LinkedIn account. She did not return calls seeking confirmation and comment.

Ever since employees began sharing too much information on Twitter and Facebook, employers have found reasons to fire them. In less serious cases, lawyers have at least raised eyebrows at questionable social media conduct of their colleagues.

Companies and firms are dealing with lawyers’ social media use on a case-by-case basis, leading to uncertainty, in-house and outside counsel say.

In the case of the Google lawyer’s Twitter, in-house counsel, law professors and private practice attorneys said the Google in-house attorney did nothing wrong. Her post wasn’t illegal, they said, because it broke no rules of client confidentiality, and Sanger’s tweet most likely overlapped with Google’s stance on similar issues: Sessions is a longtime opponent to comprehensive immigration reform and in late January, Google signed onto an amicus brief challenging the first draft of an immigration ban. Google co-founder Sergey Brin also protested the immigration ban at the San Francisco International Airport.

According to Sanger’s LinkedIn profile and her state bar records, she is still employed with Google. Google did not immediately return a request seeking comment.

But lawyers are facing increased public and ethical scrutiny when their opinions are expressed publicly online or in social media. And in today’s reactionary world, lawyers said, even if something isn’t strictly illegal, it could still look bad.

“If I’m a corporate lawyer and I publish an op-ed about how I love immigration, but I don’t say, ‘By the way, I’m the general counsel of Google, and Google hires a lot of immigrants’ would that violate any rule of ethics for lawyers? I can’t think of one,” said Rory Little, professor of law at UC Hastings College of Law, posing a hypothetical situation. “Would some people think it might be improper? Yes, I think so.”

Ryan Garcia, managing legal director in charge of social media, gaming and consumer contract management at Dell Technologies, said he believes the public’s understanding of social media use has matured in recent years. He said people don’t typically misinterpret an individual’s personal opinions for that of their employer.

Garcia used the example of Justine Sacco, a former head of public relations for media conglomerate IAC who, in 2013, on a flight to Cape Town, South Africa, wrote on Twitter that she hoped she didn’t get AIDS, according to a February 2015 report in The New York Times. “Just kidding,” Sacco wrote, “I’m white!”

“Nobody was saying ‘I can’t believe that the company she works for are racists,’” Garcia said. “Instead, they were saying ‘She’s so racist, I can’t believe you as a company would employ her.’”

Sacco was fired by IAC by the time she landed. According to the Times report, Sacco spent a month living in Ethiopia, doing volunteer work for a nongovernmental organization that focused on reducing maternal mortality rates, and she later took a communications job at Hot or Not, the early website that allowed visitors to judge people’s physical appearance. She now reportedly works for an online fantasy sports platform. Sacco could not be reached for comment, and her reported employer did not return a message seeking confirmation of Sacco’s employment.

So, even if a lawyer posts an unpopular public opinion, Garcia said, there would likely be little confusion that the lawyer’s employer holds that same opinion. Garcia admitted a caveat, however. If an employee’s work is directly related to the personal opinions they post, a company might want to implement social media policies limiting speech that could create the impression of bias in a person’s work, he said.

John Browning, partner at Dallas-based multiservice firm Passman & Jones, adjunct professor of law at several universities and author of several books on social media use, said for example, the public might believe that an executive or lawyer at a company was representing the views of his company in his posts if he was in a position to craft policy or steer the company on important positions.

“It is an entirely likely scenario that, in today’s environment, with someone expressing what they feel is their opinion, if they’re in a senior leadership role in the company and they help shape and drive policy, the public may consider how [the person] sees things, [that] is how the company sees things,” Browning said.

Browning said one jurisdiction in the United States is addressing the professional ethics of posting on social media as an attorney.

In November 2016, the Washington, D.C., bar published Ethics Opinion 370, warning social media-active lawyers to take caution when posting opinions opposing those of a client. Those instances could create “positional conflicts,” the opinion said. Browning explained it with a hypothetical example:

“For example, if I represent the National Rifle Association and I send out a tweet after a mass shooting that deplored the proliferation of firearms, I could be seen as having taken a position contrary to my client,” Browning said, “and I would be in positional conflict.”

Despite the lack of a formal rule or ethics opinion, lawyers already have gotten in trouble for similarly expressing political opinions publicly in the past, Browning said.

Even firms themselves can get in trouble. In June 2016, the Twitter account for U.K.-based firm Baker Small tweeted out self-congratulations for successfully defending multiple local authorities against claims that services were not being provided to special needs children. Several clients cancelled their contracts with the firm, The Guardian reported.

“When you beat up on a kid in a wheelchair, you have to be careful about how you celebrate,” Browning said.

Michal Rosenn, general counsel at New York-based Kickstarter, has spoken openly about net neutrality, patent reform and, most recently, President Donald Trump’s attempted immigration bans.

Rosenn said Kickstarter relies on its company charter to steer its public policy discussions. The charter includes a commitment to arts and fighting inequality, supporting an equitable world and helping creative projects come to life. Comparing those values to the idea of “objectivity” in journalism, Rosenn said all Kickstarter decisions are guided by the charter.

Rosenn said Kickstarter would only interfere with employee social media posts at the threat of potential harassment or harm to employees, or to those outside the company, in case the posts are directed to the general public. She said Kickstarter, as an organization, wants every employee to feel welcome. “We want very much to communicate the message that we are a place that values diversity,” Rosenn said, “and that includes diversity of thought.”

Copyright Corporate Counsel. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.