Vol. 82, No. 5, May 2009
I participate in several chat rooms where individuals ask for answers to legal questions. Are there ethical rules that I should be aware of?
Participation in a chat room and in the type of discussions that you have online raises several concerns about compliance with the Rules of Professional Conduct. You must take certain steps to ensure that you are not creating an attorney-client relationship with individuals that you communicate with in the chat room. You also must make sure that you are not directly soliciting clients based on your discussions.
SCR 20:7.3, entitled “Direct Contact With Prospective Clients,” is directly on point and must be closely followed. SCR 20: 7.3(a) provides as follows:
“A lawyer shall not by … real-time electronic contact, solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain unless the person contacted:
“(1) is a lawyer; or
“(2) has a family, close personal or prior professional relationship with the lawyer.”
The Wisconsin Supreme Court revised this rule in July 2007 to be consistent with Model Rule 7.3 and to address “real-time electronic contact” as a means of soliciting clients, which would certainly include participation in a chat room and on an electronic email list. The purpose of this rule is to ensure that a lawyer does not use his or her participation in a chat room to actively solicit clients unless the individual being communicated with falls into one of the exceptions. Thus, an attorney participating in a chat room must not actively solicit professional employment from any individual who would be considered a prospective client. SCR 20:1.18(a) defines a prospective client as follows:
“A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”
Therefore, an analysis must be made of the communication that a lawyer engages in within the chat room context. If that communication involves providing general legal information and does not seek to elicit or respond to the specifics of a particular individual’s situation, the lawyer would not be engaging in a conversation for the purpose of forming a client-relationship. Lawyers should limit their discussion to explaining general principles or trends in the law or laying out the majority and minority viewpoints on particular legal issues. Lawyers engaging in discussions in a chat room also should advise individuals to obtain legal counsel to determine what law would be applicable to their unique circumstances and indicate that the discussion in the chat room should not substitute for specific legal advice.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
A lawyer participating in a chat room or other social media must be careful to avoid engaging in communication that could result in creation of an attorney-client relationship. For example, a discussion regarding a specific legal question posed by an individual may rise to a level of creating an attorney-client relationship. If that occurs, the attorney owes to that individual the full breadth of ethical duties and responsibilities, including the duty of confidentiality and the duty of loyalty incorporated into the conflict of interest rules. It is, therefore, best that the lawyer avoid any discussion of a specific legal problem during the chat room communications. If the lawyer wants to consider an attorney-client relationship with a particular individual, the lawyer should arrange to talk to the individual offline, at which time the normal considerations for intake of a client would apply. The duties owed to a prospective client, as outlined in SCR 20:1.18, might apply if an offline conversation takes place and the attorney does not proceed with representing the individual. If representation is initiated, the client is owed all the duties and responsibilities that come with an attorney-client relationship.
If the lawyer is participating in a chat room and receiving payment from the chat room sponsor, this information should be disclosed to all participants. If a lawyer has offline contact with a person participating in the chat room and engages in representing that client, no part of the fees earned by the attorney may be shared with the chat room sponsor.
A lawyer who participates in a chat room should be careful to limit the communication to discussion of general legal information and avoid discussions about a participant’s specific legal problem. The lawyer should make clear that he or she is only presenting information of a general legal nature and that the participant should contact an attorney to obtain specific advice about the legal problem identified.