As an attorney who travels around Wisconsin, personal injury lawyer Jason Knutson admits that sending the occasional text message while driving can save time.
"I think any busy attorney who says they haven't texted while driving is not telling you the truth," he said. "A lot have done it, especially on a longer trip."
But starting Dec. 1, Wisconsin will join 23 other states in banning composing or sending e-mails or text messages while driving.
While the state already has a statute and penalties for inattentive driving, lawmakers wanted to specifically target electronic communication.
"This isn't a ban on cell phones," said Matt Egerer, spokesperson for Rep. Peter Barca, D-Kenosha, who introduced the bill last October. "But texting wasn't banned under the letter of the law and we wanted to make it easier to reign in."
Penalties for texting while driving range from $20 to $400 for a first offense and $200 to $800 for subsequent violations. Gov. Jim Doyle signed Assembly Bill 496 into law on May 5.
Knutson said he will cease sending texts from the road given that the legislature "drew a pretty clear line" and he doesn't expect law enforcement to make many exceptions.
But others, like Brookfield personal injury attorney Jeffrey R. Zirgibel, who doesn't text in the car, suggested that the new law likely won't deter those that do; rather, it will just make them more cautious.
"I'm sure lawyers are texting in their cars," he said. "Is this going to stop them? Probably not. I think if they passed a cell phone rule, it would hurt a lot of people."
Criminal defense attorney Deanne M. Koll also questioned the effect the new law will have on curbing offenses.
"In my opinion, I already know it's unsafe," said Koll, of Bakke Norman SC. "The law doesn't change my opinion on the safety of not doing that."
Only emergency vehicle operators, GPS systems, HAM radios, voice activated systems that text, like Ford's SYNC system, and systems that send non-text messages to and from the car like OnStar are exempt, according to the law.
Attorneys run the same risk of being busted as the general public, but could have more to lose, especially if they have to turn over their cell, iPhone or Blackberry over to police for investigation, said Milwaukee attorney Steven C. McGaver.
"While an attorney could object to turning over his or her cellular device by claiming that it contains confidential information, no one knows whether the attorney's objection will carry any weight with an officer investigating a texting while driving situation, or with a judge later in the proceedings," he said.
Zirgibel considered it to be a "gray area" as to how the situation would be handled. But he did not expect claiming attorney-client privilege would get an attorney out of a violation.
"My guess is a judge would side against the lawyer if he was committing a crime," said Zirgibel, of Pasternak & Zirgibel SC.
The expectation is that law enforcement would rely more on phone records for facts than confiscated devices, since someone could simply delete a sent text.
"I don't know if the actual taking of someone's phone will even be an issue," Egerer said.
If an attorney wants to challenge a citation, having phone records subpoenaed would eliminate the chance of exposing confidential information, noted Zirgibel.
"Then you haven't disclosed anything," he said. "If they are taking your phone and looking at it, now you have client names, numbers and an officer might ask you 'what are you talking with this guy about?'"
Knutson also expects phone seizures to be rare. And even if an attorney is forced to surrender his or her cell, the risk of exposing confidential information should be minimal, given that law enforcement would simply look for when a text or email was sent, not the message itself.
"The privilege really extends to the contents of the communication, not the fact that there is a communication," he said. "I could see this also applying to the doctor-patient [relationship], but again, the contents of the text itself wouldn't be the issue, just that it was made while driving."
Still, attorneys should take a better than safe than sorry approach, said McGaver.
Given their position as holders of privileged information, such as client e-mails or contact information, attorneys should safeguard against the possibility of having their mobile devices searched during an investigation.
"At the very least, lawyers should password protect their cellular devices to add an impediment to the disclosure of potentially confidential or attorney-client privileged information," said McGaver, of Gimbel, Reilly, Guerin & Brown LLP.
Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.
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May 13th, 2010 at 5:30 pm
This is only half the battle. Passing a cell phone ban while driving is what we need next. Test after test has shown that people who drive while talking on cell phones drive worse than drunks. Numerous people across this country have been killed, maimed and permanently disabled because some idiot was talking on their cell phone instead of paying attention to the road.
We’ve all seen them: They tailgate, drive too fast or too slow, they run red lights and blow through stop signs. They are simply reckless and annoying. Add in the fact that people are being maimed and killed just so lawyer Joe can call his office or talk to some client and you have to wonder why this insanity is still allowed. No one has the right to threaten the lives of other people on the road, yet cell-phone yakkers do it all the time. They are unaware of something called civility, having respect for someone else’s life. Those who choose to text and/or talk on cell phones while driving have no respect for anyone but themselves. It’s ego-centrism run amok and the next dead or disfigured person could be you. Honestly I find it mind-boggling that any lawyer supports doing either of these things. They might as well encourage people to drive blindfolded.