Mistexting: A New Domain for Ethical Violations

By Brendon P. Levesque

Soon after Johnny Manziel was involved in a hit-and-run crash a few weeks ago, his lawyer “accidentally” sent a lengthy text message to the Associated Press suggesting that Manziel might be unable to stay clean while on trial for allegations of domestic violence. Among other comments, his attorney wrote, “Heaven help us if one of the conditions is to pee in a bottle.” In the same text, he expressed concerns that Manziel might have spent $1018 at a drug paraphernalia store not even a day after his crash.

Manziel’s father has since commented that he believes it would be best for his son to go to jail. “I don’t know what to say other than my son is a druggie and he needs help. He just hasn’t [sought] it yet. Hopefully he doesn’t die before he comes to his senses. That’s about all you can say. I don’t know what else to say,” his father told ESPN.

Although Manziel’s case will remain an interesting one to follow, it may be more interesting to see what repercussions, if any, face the lawyer who, as of June 27th, has withdrawn as an associate counsel on the case. Accident or not, the lawyer’s “mistext” potentially implicates Rules 1.1 (Competence), 1.6 (Confidentiality of Information), and 1.3 (Diligence) of the Rules of Professional Misconduct. Is an attorney who fails to confirm the recipient of his text message acting “with zeal in advocacy upon the client’s behalf?”

The commentary to Rule 1.1 now states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” A duty to keep abreast of these changes includes a knowledge of how to properly use technology and to be aware of any attendant risks. If an attorney decides to communicate by text, they should be prudent enough to ensure that their messages are being sent to the intended recipient. The same goes for email and other forms of electronic communication.