Mark S. Zaid is a distinguished lawyer currently active in bolstering anti-President Trump efforts. He actively trolls on Twitter for clients looking to bring laws suits against the administration, and his clients include prominent “resistance” conspiracy theorist and blogger Louise Mensch, whose name I was blissfully unaware of until last week, and now she is turning up in my e-mail, in my story feeds, everywhere.
A couple of days ago, Mensch launched a new Trump rumor, using “anonymous sources” (which makes her just like the New York Times and Washington Post!) that the Daily Kos picked up. You can read it here: good luck. It is so muddled in its “facts” and suppositions that it makes other fake news look good. Naturally, the Daily Kos took the “breaking” scoop at face value, although it was so legally absurd it made my teeth hurt. The Palmer Report, the same wacko site that drove Larry Tribe around the bend, also was in the mix.
My favorite item in the “story” was that a court had handed down an indictment against President Trump, not for criminal purposes but to support his impeachment. When I read stuff like this, I stop reading further. Grand juries don’t work like that. Courts don’t work like that. Indictments don’t work like that. Impeachment doesn’t work like that. Nothing works like that, except to a mind where complete hatred and fear of Donald Trump and the joy of having so many mutually infected embarrassing themselves in high places has caused the brain to morph, hopefully only temporarily, into a gerbil wheel.
Zaid, who obviously has a high tolerance for this blather being a 24-7 Trump basher himself, apparently couldn’t take it any more, and wrote to his client Louise on Twitter and in the comments to The Daily Kos story,
Respectfully to my client, there is no info available to support this. We need more than just these anonymous source(s).
This is like putting client advice on a billboard. This is like leaving client advice on an answering machine (yes, I’ve encountered that!). This is like putting client advice on your Facebook wall, and it is exactly like posting client advice on a public website, because that’s essentially what Zaid did.
Is this an ethics violation? In his jurisdiction, which is also mine, Washington D.C., I would say so. Here is what the District’s Rule 1.3 says; it is the toughest in the country:
Rules of Professional Conduct: Rule 1.3–Diligence and Zeal
(a) A lawyer shall represent a client zealously and diligently within the bounds of the law.
(b) A lawyer shall not intentionally:(1) Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or
(2) Prejudice or damage a client during the course of the professional relationship.
(c) A lawyer shall act with reasonable promptness in representing a client.
Is telling your own client that he or she has acted irresponsibly in a public forum to “Prejudice or damage a client during the course of the professional relationship”?
It sure seems so to me; indeed it seems obvious and beyond argument. When some of Zaid’s twitter followers questioned his conduct, Zaid doubled down: he didn’t reveal any confidences, he said. True—what a lawyer says to a client isn’t itself privileged or confidential unless the statement reveals confidences. I am assuming, without knowing, that Zaid had this client’s permission to tell the world he is representing her, otherwise that would be breaching a confidence. Zaid also tweeted, by way of explanation for slapping down his client in public,
“In fairness, I’m worried when any clients of mine say things they haven’t shared with me in advance! Time will tell.”
Of course. Any good lawyer would be. However, the appropriate, professional, responsible way to make this point to a client is privately. Call her. Send her an e-mail. Admonishing her on Twitter? What madness is this?
We know the answer: it’s Twitter madness. Zaid is tweeting and re-tweeting all the time; he tweets fast and on impulse, and when a lawyer, or anyone, starts thinking of social media as a natural way of communicating, things go wrong: ethics alarms don’t go off in time. Zaid uses Twitter for advertising and promotion, and there’s nothing wrong with that, except that too much twittering makes lawyers (and Presidents) vulnerable to mistakes.
There’s no way Zaid would face discipline for this gaffe; Rule 1.3 (b) (2) is seldom the basis for discipline in D.C., and a single instance that the client didn’t even seem to resent (though she argued with him about it..also publicly) does not call into question his integrity or fitness to practice. Nonetheless, the incident calls into question his judgment and professionalism. Some rules, especially in D.C., are less compliance requirements than professional guidelines; 1.3 (b) (2) is such a rule. It exists to make an ethics alarm go off before a lawyer does something unprofessional like giving a client advice in public. Zaid’s practice includes torts and crimes, national security, foreign sovereign and diplomatic immunity matters among others. Do his clients now have to remind him not to embarrass them on Twitter? Discretion is a professional value, after all.
Ethics Alarms 
I don’t even practice anymore and I don’t go anywhere near twitter. Any more than I’d seek out a quicksand deposit. I guess I’m old school but I think shooting your professional mouth off on twitter is per se unprofessional.
(Rolls eyes) I am a prolific facebook poster, but I never discuss work there. Yup, just like the Washington Post, and I bet a doozy of a post on that is in the works…
Inappropriate social media use has also been a growing concern in medicine. If one is constantly chattering away on Twitter or Facebook it is very easy to let something slip that could create problems. This goes beyond the obvious issue of revealing protected health information (PHI). Even using e-mail can be a problem if PHI is included and HIPAA requires strict compliance measures to ensure that information is not inadvertently revealed. The AMA Journal of Ethics has published quite a bit on the topic as have other sources. The following article from The AMA Journal of Ethics provides a number of case vignettes that help illustrate the scope of the problem.
AMA Journal of Ethics
I visited Twitter once.
Facebook gets a post once in a while and a few “likes”.
Facebook: not in a decade
Twitter: never
Instagram: never
Post on any other web sites: has happened, but as rare as hen’s teeth
Ethics Alarms: addicted
I saw their exchange the other day, and came to the same conclusions you have here. Mensch is an idiot, and even plenty of other anti-Trumpers I’ve seen on Twitter have learned not to take her claims seriously, but this was totally unprofessional behavior.
Mensch has totally gone off the rails but I would say she did one great thing and that was leading the defense for Tim Hunt during the witch that resulted from comments at a S Korean conference. She was very vocal in her defense for him and helped expose Connie St Louis for the fraud that she is.