By Jennifer Gilman
I, like millions of others, have a Facebook account. I’m responsible with it, as all attorneys should be, and always make sure it passes the “eyebrow test.” That is, I review all messages before posting to be sure that if my boss, my parents, my rabbi, a judge, the State Bar, my frenemy, and my ex-boyfriend all read the post, none of them would raise an eyebrow.
The other day, my friend Juanita posted, “Today is a great day! I feel like one of those bozos on car insurance commercials. I’m about to save $3k a year to switch car insurance policies! See ya, Highrate Indemnity, Inc.! You’re way too expensive for my blood.”
(“Highrate Indemnity, Inc.” is a pseudonym. Obviously.)
Dean, a mutual attorney friend, commented on Juanita’s post: “Please make sure that you are not contracting with a company that is underinsuring you. You don’t want a company that will just slash your coverage and get rid of your UIM. You are more important than any money you might save on good coverage.”
I groaned internally. Was Dean giving legal advice and practicing law online? Here are the thoughts that ran through my head:
- It was unlikely that Juanita was represented by counsel regarding her switch from insurance companies, and she had made no mention of a car accident or lawsuit, so she probably isn’t a represented individual covered by Rule 2-100. However, California Business and Professions Code § 6068(d) nonetheless imposes a duty to be honest with unrepresented parties. It provides that it is the duty of a California State Bar member “to employ for the purposes of maintaining the causes confided to him or her, those means only as are consistent with truth…”
- I know that Dean and Juanita both live here in California; Dean is a member of the California State Bar and does not practice law in other jurisdictions. He probably doesn’t have to worry about the unauthorized practice of law in violation of 1-300(B). But what about those who might be reading the public post in a different jurisdiction? If insurance policies operate differently in other jurisdictions, could Dean be subject to discipline?
- Dean’s communication was completely unsolicited. Rule 1-400 defines and regulates “communication” and “solicitation.” Communication refers to “any message or offer made by or on behalf of a member” regarding employment that is directed to a prior, current, or potential client. Does Dean’s comment rise to the level of a communication under this rule?
In this situation, I decided, Dean’s comment was neutral enough. He encouraged Juanita to call her insurer – not Dean himself – to make sure she had ample coverage. His comment wasn’t misleading or untruthful, and anyone reading the post in any state could call up his or her own insurer and do the same.
Then a woman named Suzanne – apparently a non-lawyer – made an inaccurate statement about UIM coverage and how it worked, coupled with a reference to getting nowhere in her current lawsuit. Dean’s response to Suzanne made the hairs on the back of my neck stand up: “That doesn’t sound right to me. Call me for a free consultation if you’re not sure about how to handle your case – I can represent you if you’re looking for an attorney.” He proceeded to describe UIM coverage, how it is used, situations in which it protects the holder of the policy, and why it is important.
I was kind of nodding along with his comments when I realized Holy [ahem] moly – he’s practicing law. On the Internet.
It seemed clear to me that Dean hadn’t intended to get to this point. He had been trying to help Juanita, Suzanne, and perhaps others, too. As attorneys, we know a lot of information and understand it in a precise and clear way that we can share with others. That ability to explain and communicate the law is a lynchpin of our profession, and our duty under Rule 3-500.
But not with those who are not our clients.
Here’s my thinking on Dean’s subsequent comment:
- He and Suzanne may have created an attorney-client relationship, or at the very least a prospective client relationship, including all of the obligations that attach under Business and Professions Code section 6068(e)(1). And yet, Dean knows essentially nothing about Suzanne’s case – not even so much as her address or the state where she lives. What if she lives in Michigan, or Montana, or Mexico? This may trigger new concerns for Dean under 1-300(B).
- Suzanne may already be represented by counsel. While Rule 2-100(C) would not prohibit Suzanne from reaching out to Dan for advice or representation, in this situation, it was Dan who reached out first.
- The post may well be an improper communication under 1-400(A). Dean invited Suzanne to call him for a “free consultation” – a clear offer by Dean related to employment, notwithstanding the fact that there will be no charge for the call. See C.O.P.R.A.C. Op. 2012-186.
- Dean and Suzanne are essentially carrying out their attorney-client relationship in a public forum where others can see it. How can Dean comply with Business and Professions Code § 6068(e)(1) and maintain inviolate, at every peril to himself, any confidential information Suzanne might type out to him?
It is incredibly easy to fall into the trap of an ethical violation whilst meandering through the Internet. Perhaps we attorneys need something stronger than the “eyebrow test.” Perhaps what we need is a “gavel test.” If Suzanne believed Dean’s post created an attorney-client relationship between the two of them, and a judge would agree, would the gavel come down in his favor with respect to his online behavior? If not, better not to post.
Jennifer Gilman is an attorney with Frantz Law Group, APLC.
No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.