Ah, the holiday party; a time to reconnect, network and, if you’re not careful, commit an ethics violation.
“I would never tell a lawyer not to attend a holiday party because, obviously, that’s marketing and referrals,” said Nate Cade, a Milwaukee attorney who helped shape the rules of professional conduct as a former member and chair of the State Bar of Wisconsin’s Professional Ethics Committee.
But there’s reason to be cautious, said Christopher Kolb, a Milwaukee attorney who has represented attorneys on ethics matters for more than 25 years.
“The thing, let’s face it, is tongues get loosened,” he said. “People have a few eggnogs. And you have to, whether it’s at a holiday party or another social situation, you always have to be careful.”
Neither the Judicial Code of Conduct nor the Rules of Professional Conduct for Attorneys specifically deal with holiday parties, said Tom Sheehan, Wisconsin’s court information officer. But, he said, the rules for general attorney conduct still would apply at such occasions.
Perhaps the biggest potential pitfall, Cade said, is breaching confidentiality.
“We all like to tell war stories, especially litigators,” he said. “It’s one of the few times you can go to war and not get killed, so we like to talk about our cases.”
To avoid spilling confidential information, keep it vague, Cade advised. That means no names, unless you and your client were listed in the newspaper, for instance. Think about what’s available in the public domain, sources such as CCAP and PACER, he said. If it’s public knowledge, it might be OK, but steer clear of identifying details.
Better yet, Kolb said, skip the war stories all together.
“The temptation is to talk about facts without names, but that’s the kind of line drawing that isn’t practical,” he said. “Chances are you’ll never run into trouble. It’s not something the OLR is likely to ever address. But a strict reading of the rule is you just don’t talk about matters with clients.”
Judges, of course, can’t talk about cases at all, even in general terms. And attorneys should be careful to not to engage them ex parte.
“You can’t talk about the case matter, not even in passing,” Kolb said. “Just leave that alone.”
Attorneys also have to be careful, Cade said, that networking opportunities don’t go too far. You don’t want to be accused of potential client engagement.
Under Wisconsin Supreme Court rule 20:1.18, “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”
Even if no attorney-client relationship is forged, lawyers run the risk of creating that impression with casual legal talk, Cade said.
“It’s no different than you meet a doctor and you say you’re coughing up phlegm. You’re sharing this moment, and you expect them to give you a quick diagnosis,” he said. “The same thing when you meet a lawyer. [People] want your assistance, and that’s where it becomes dicey.
“You could unwittingly have conversations with someone and you may not believe that they are a client, but they believe that they have become a client.”
Cade said it’s best to establish clear lines quickly.
“You don’t want to be rude,” he said, “but you can say, ‘It sounds like you’ve got a tax issue. Here’s my card. If you send me an email, I’m happy to recommend someone who specializes in that or discuss it with you.’”
Attorneys also have to be careful to refrain from “offensive personality” violations, a concept found in the attorney’s oath, though not directly dealt with in the state code of ethics.
“It’s a very vague term and not often applied,” Kolb said, “but it can be applied when somebody steps out of line.”
Typically, such offenses include disrespectful talk, boasting, false statements and exaggeration; the sorts of the things that can be fueled by alcohol, although neither Kolb nor Cade insisted attorneys need to avoid imbibing at holiday events. However, both encouraged attorneys to know their limits and be mindful of the consequences of their actions.
“It’s hard for me to imagine if that’s all that was involved there would be anything like a revocation or a long-term suspension,” Kolb said. “But, if combined with other things or a bad record, it could.”
But reprimands, even criminal charges, depending on the situation, are certainly possible.
“You are a lawyer 24/7,” Cade said. “You’re a lawyer when you take a shower. You’re a lawyer when you have a drink. And you’re a lawyer when you’re pulled over.
“If you’re a lawyer who gets arrested for an OWI, that has to be reported to the state Supreme Court and they have to ask, ‘Do we want that kind of person as a lawyer?’”
The best approach, he said, is to use common sense.
“It’s a rule of reason,” Cade said. “Remember what they said on Hill Street Blues? ‘Be careful out there.’”