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Lawyers reticent to share opinions, advice on Facebook

Litigator Jacob Curtis stopped short of the ethical line during a Facebook conversation with a friend who wanted legal advice.

The friend said she was entitled to unpaid wages from her employer, and gave a detailed account of her situation, said Curtis, with Reinhart Boerner Van Deuren SC in Milwaukee. His friend, he said, wanted to know if her interpretation of labor law was correct.

While he wanted to help, Curtis said, he responded by referring her to other legal help, in part because he didn’t know anything about labor law, but also because he didn’t want to risk getting in trouble.

“It was a situation where I think she expected a detailed answer,” he said. “But right away there were red flags that if I had responded, clearly she would have taken that as a representation of her interests.

“It’s tough because it’s someone I knew, but I helped as best I could.”

Attorneys are argumentative by nature, but when it comes to Facebook, ethical rules require they keep their arguments and legal opinions to themselves.

The risk of retribution or accidently forming an attorney-client relationship isn’t worth trying to answer a legal question in plain view of other online users, said Fitchburg solo practitioner Scott Mickelson.

“In an in-person casual conversation, I think the human tendency of attorneys is to try and answer the question,” he said. “You want to help people, so it’s human nature to go into it.”

But online limitations restrict the benefits of Facebook as a marketing tool and, to some extent, the personal enjoyment of casually communicating in ways other users of the site take for granted.

“It helps get the name out a little bit,” said Milwaukee lawyer John Bayer. “But I’m more concerned with the image I’m projecting out there.”

Like many younger attorneys, Bayer, 27, is active on Facebook. The defense lawyer, who specializes in drunken-driving cases, maintains a personal account through which he stays in touch with friends and family.

But as a relatively new solo practitioner, the 2009 Marquette Law School graduate also uses Facebook for promotion.

“I wanted to let people know I opened my own firm,” Bayer said, “but Facebook can also show a different side of you, and as a lawyer, you have to be careful.”

Attorneys are governed by the Rules of Professional Conduct all day, every day. Those rules prohibit a lawyer from posting comments on Facebook that could be interpreted as legal advice or establishment of an attorney-client privilege where one doesn’t exist.

On Facebook, an attorney could create a client relationship before realizing it happened, said Dean Dietrich, chairman of the State Bar of Wisconsin Professional Ethics Committee.

Essentially, Dietrich said, it’s unclear where the threshold is for how much an attorney can say on Facebook before violating ethical rules.

“The concept of what is real-time communication and when does someone have to stop on their Facebook page is very new territory,” he said.

Before amending its rules, the State Bar of Wisconsin is awaiting the results of the American Bar Association’s review and revisions of the Model Rules of Professional Conduct, Dietrich said. The revisions, he said, should include more specific language dealing with social media ethical limitations.

Until then, attorneys have to choose their words carefully. On April 21, Wisconsin’s Office of Lawyer Regulation filed a recommendation for a reciprocal 60-day suspension for Beloit lawyer Kristine Peshek, who received the same punishment in Illinois for revealing confidential client information in her blog.

Peshek, of Peshek & Rabbitt, did not return calls seeking comment.

Given the informal nature of communication on social media sites, Dietrich said, he expects similar complaints to become more common.

“It’s such an easy method of communication and an easy area of potential risk,” he said, “because of the fact that everyone tends to use it with a little less scrutiny than if they were drafting a business letter to a client.”

Mickelson said it is best for lawyers on Facebook to realize there are social media limitations that don’t necessarily apply to other social settings.

“It’s a little different in person,” he said, “because people have less of an expectation that reaching out to an attorney at a social venue will formalize an attorney-client relationship.”

Still, Curtis said, his response to his Facebook friend would have been the same had it been a private conversation.

“Maybe I’m being overcautious,” he said, “but I would really think it’s no different.”

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com

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