Anti-social media: Arguing ethically on the Internet

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Despite my best efforts, I get sucked into arguments on social media, especially at night.

Granted, most of the arguments involve extremely trivial things, so sleep deprivation notwithstanding, my involvement does not materially affect my life. (Still, wow, some people can be strident about football and television shows and whether pineapple belongs on pizza.) I say my piece, get attacked by a stranger or two, go a couple of rounds, and move on.

Of late, I’ve tried to avoid Internet debates over topics that are actually important; I don’t always have time to think through and articulate a reasonable position, so all things being equal I prefer to just stay out of it. The dilemma comes when other people want to suck me into their arguments—I get a Facebook notification that someone has tagged me in a post, so I click over, and see something along the lines of, “I’m pretty sure I’m right about (whatever topic) so I’ll ask my lawyer friends to weigh in.” They know I’m online (as I usually forget to disable the function that tells other people I’m online.) And even though a Facebook tag is not a subpoena, I feel like I have to respond.

If you’re on social media, you probably get these sorts of notifications, too—your 7th grade lab partner is sparring with someone you’ve never met over something that vaguely implicates the law.

She remembers that she has a few friends who are lawyers, tags them, and asks for their opinion. It doesn’t really matter if the question is about executive privilege in the federal government and you are a trust and estates lawyer—you somehow are expected to know the answers to your friends’ questions and also have the time and interest to participate in their debate.

Arguing with people on the Internet over silly things is unlikely to affect your law practice (unless, perhaps, you post a Game of Thrones spoiler; then all bets are off). Arguing with people about legal issues, however, might, even though you’re not arguing about a client matter or anything else that’s confidential. (You’re not doing that, right? The duty of confidentiality doesn’t contain an “it was late and I was just tweeting” exception. See SCR 20:1.6.)

For example, let’s say your friend tagged you into a Facebook thread about a legal issue that you do know a lot about and that inflames passions on many sides. You accept the invitation to engage, share your position, dig in your heels, and maybe answer a few questions. Maybe you stick to the language of the law, or maybe you offer anecdotes from your own practice, or maybe you provide, even casually, some tips.

So, what happens if, online, you share an insightful, well-sourced analysis of that particular controversial point of law—and shortly thereafter, you’re called upon to advocate the opposing view on behalf of a client? The original analysis continues to live on social media (and even if you delete it, it’s not always gone—screenshots are forever), and could be used by opposing parties to undermine your argument.

Also, you don’t always know who else your acquaintances are connected with. Presumably, you went into this online argument without performing a conflict check. You don’t know that the person you exchanged a brief back-and-forth with isn’t the estranged spouse of your new divorce client.  Judge Margaret Maidenname in the courtroom may be Peggy Marriedname on Facebook, or doglover53202 on Twitter, and you may have inadvertently had ex parte contact with her about an issue that may come up in court next week.  Even if you carefully screen a thread for people you know and issues you recognize, you can’t know that someone affiliated with a matter isn’t able to see what you wrote.  Even these casual contacts can create conflicts.

Other perils arise when you wade in and try to discuss something you really don’t know much about, or something specific to a jurisdiction in which you are not licensed. You don’t want a Twitter fight to turn into a concern about competency, a complaint about misleading representations, or an unauthorized-practice violation in some state you’ve never even visited—and, at this point, we don’t know much about whether that would actually happen. The Supreme Court Rules (and more broadly, the ABA’s Model Rules of Professional Conduct on which most states’ ethical rules are based) really haven’t caught up with technology and social media. So there isn’t a lot out there as to where the line is between ranting on the Internet and practicing law (authorized or otherwise).

Facebook, Twitter, Snapchat, and the rest are a big part of a lot of people’s lives, and it is probably unrealistic to expect attorneys to restrict their personal use of social media to pictures of babies and cats. It’s human nature to want to engage, to stake out positions, and yes, to argue, and the relative simplicity and instant gratification that social media brings feeds into that. Until the rules or case law reflect reality and we have better guidance, I would suggest simply treading cautiously when you want to fight on the Internet about anything law related.

And seriously, go to bed. You’re wrong about pineapple on pizza anyway.

Stacie Rosenzweig is an attorney at Halling & Cayo S.C. in Milwaukee. Her practice centers on working with lawyers and other credentialed professionals in a variety of licensing, professional responsibility and disciplinary proceedings.