Are You Accidentally Lawyering on the Internet?

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Unless you’re a steadfast Luddite, you use social media. You may not be using it to market your legal services directly, but you’ve probably got some sort of web presence that tips people off to the fact you practice law, be it something as overt as a law firm affiliation on your Facebook account or as inconspicuous as a brief discussion on Twitter.

Obviously, social media can be a way to advertise your services and network with other lawyers. Social media also gives us great opportunities to interact with family, friends, and complete strangers on the Internet. Those interactions are often brief and casual and, because of that, can lead to ethical problems for legal types.

Even a quick Google search will turn up a laundry list of Bad Lawyer Behavior on the Internet. There’s the BigLaw attorney who used his blog to trash the Tucson shooting victims’ memorial service for being too much of an “Indian tribal thing” even though his firm represented a substantial number of Native American tribes. (Needless to say, he chose to discontinue blogging shortly thereafter). There’s the Florida defense attorney who received a public reprimand for questioning a judge’s mental stability when he was angry with her about insufficient trial prep times. These incidents, though, are probably easily avoided. Social media maven or not, you likely know not to excoriate your firm’s clients on Facebook or yell about judges on Twitter. But what about chatting with some non-lawyer Twitter followers about a recent legal development, or providing quick feedback via Facebook on a friend’s legal issue? Are you accidentally providing legal advice? Are you inadvertently soliciting business?

An ABA committee, Ethics 20/20, has recently tried to untangle the whole communication/solicitation issue with some proposed amendments to the Model Rules of Professional Conduct. The suggested changes to Comment 1 of Model Rule 1.18 attempt to clarify when your internet wanderings might create a prospective lawyer-client relationship.

A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response…In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.

Given that reading the Model Rules is often as comprehensible as your average Zen koan, this doesn’t necessarily give much guidance. However, the Ethics 20/20 summary itself states that “a prospective client is someone who communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming that relationship.” It isn’t far-fetched to think that a Twitter follower or Facebook friend might think that conversing with you about their particular issue means you’re interested in taking the relationship to the next level and representing them. The proposed rule changes seem to give you more leeway when your communication is entirely one-sided, rather than engaging directly with an individual, as that is likely more like advertising. Bottom line: the more you dialogue with a specific individual in any mode of communication, the closer you might be getting to accidentally leading a layperson to believe you want to be their lawyer.

Nervous yet? We haven’t even begun to talk about whether you should recommend someone on LinkedIn, “friend” judges or opposing counsel or anyone, really, on Facebook, or import all your Outlook contacts into your Gmail cloud. Future posts, perhaps.

(image: http://www.flickr.com/photos/johnfederico/2906338832)

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  • brian

    lisa, what do you think about if the lawyer communicates but ends his response with something like #notyourlawyer #notlegal advice does this apprise the recipient sufficiently?

    • Hashtags are definitely the answer!

      Look, you don’t get to pretend you aren’t giving advice if you really are. Prefacing your advice with “I’m not your lawyer, but” doesn’t mean you aren’t giving advice. If you do give advice, you are responsible for it. And you might create a limited attorney-client relationship in the process.

      So don’t give advice online, at least not unless you really mean to and are prepared to accept responsibility for it.

      • John Hickey

        I think this sort of peremptory, dismissive approach discourages people from talking openly about this issue. I think there are ways in which the line seems not so clear-cut as to what constitutes giving advice in a way that triggers obligations.

        What seems to me a casual reference to common knowledge may seem like legal advice to someone else. For instance, if I say you shouldn’t drive drunk, that would hardly seem like legal advice to me, but it could definitely be thought of as legal advice by some people. And saying it as an abstract principle is different from saying it to an individual. And saying it to an individual who has revealed a DUI history is different from saying it to someone who has not.

        I don’t know that even saying it to an individual who has revealed a DUI history would necessarily trigger a lawyer-client obligation, and this may be an example of an obvious non-problem. But think of the infinite range of other sorts of information which is common knowledge to an educated person but specialized advice to others.

        I think “giving advice” to the general public, as in, “know what you are signing” or other more more specific advice, should be distinguished from telling an individual what to do. And even in telling an individual what to do, there is, I would think, a range of advice that is common enough knowledge that it would not trigger the lawyer-client obligations. I would like to see the conversation on this opened up and not peremptorily shut down.