Jnana Settle. Courtesy photo
In February, a potential client approached second-year lawyer Jnana Settle with a difficult legal question she couldn’t answer: Had an employer violated privacy laws by telling all of the potential client's co-workers that she had been out with shingles?
This would have been an easier question for Settle to handle a year ago when she worked in a big downtown Dallas law firm—a mere walk down the hallway to a more senior lawyer’s office for consultation would have lead her in the right direction. But now that Settle is making her way as a solo practitioner in suburban Murphy, there are no other lawyers within shouting distance to ask.
So she turned to Facebook, specifically the Texas Lawyers Facebook group, where she posted the question. Within minutes Settle received answers from 20 different different Texas attorneys—most of them concluding that the illness wasn’t embarrassing enough to warrant legal protection. Settle ultimately decided to refer the client to an employment attorney.
Settle’s not alone in consulting social media for tricky legal questions. The Texas Lawyers closed group has nearly 11,000 members who have answered more than 1 million questions since it began on Facebook in 2014. The group has been a huge help to young solos seeking guidance, she said.
“Because there are so many lawyers coming out of Texas law schools, and there are not jobs for them, there’s no hallway. The Facebook group is the hallway,” Settle said. “That’s the focus of the group. They are priceless for asking about judges and procedure.’’
Settle’s experience is exactly what Houston mediator Andrew Tolchin had in mind when he started the group four years ago. He envisioned the group as a place where less-seasoned lawyers could seek advice from veteran Texas lawyers all over the state in a private, judgement-free zone. And hopefully the answers will educate many more attorneys other than the one asking the question, he said.
“Collectively, what I see in the group, I call it peer review mentorship. That’s a term of art I have created—the questions can be asked and responded to in front of everybody,” Tolchin said. “So a question asked by one person can actually train many in real time, whether it’s from your living room or your office or wherever you happen to be at the moment.”
What’s going on in the Texas Lawyers Facebook group is what is supposed to be happening in traditional bar associations—they just do it faster and without bar dues, he said.
“There’s an old world way of thinking that a bar association consists of people that are in the same room,” Tolchin said. “What I have found, and what this model has proven, is that a bar association is nothing more than attorneys associating with respect to some nexus. Here, this closed group that can’t be directly viewed by the public is that nexus. And it’s a cost-free nexus."
To be admitted to the group, a person must have a Texas bar card and provide his or her license number. If there’s any confusion about admission to practice in the state, Tolchin will personally call an applicant before admitting him or her into the group. The group is also heavily moderated by both Tolchin and Michelle Cheng, an Austin attorney who serves as the group’s co-administrator.
“Politics, advertising and spam we don’t allow. You can’t say: ‘Hi. I’m attorney so and so, please send me your PI cases,'” Tolchin said. “But what happens is, if someone asks PI questions, and a PI attorney answers those questions well, they are going to get referrals because they demonstrated skill.’’
While Texas Lawyers Facebook group has no formal association with the State Bar of Texas, it is comprised of 11 percent of the Bar’s membership. The group is now larger than both the Harris County Bar Association and the Dallas County Bar Association, and its membership is growing every day. It is the largest volunteer bar association in the state.
“You can press 'send' and literally talk to 11 percent of the lawyers in Texas. It’s crazy,’’ said Scott Rothenberg, a Houston appellate attorney who participates in the group.
When the group got that big, Rothenberg began having concerns about the ethics of the social media group’s operations.
Earlier this year, Rothenberg posed a question of his own—to the State Bar of Texas’ Professional Ethics Committee: could lawyers use the Facebook group for the benefit of their clients without running afoul of the Texas Disciplinary Rules of Professional Conduct?
The committee’s answer was a qualified yes. They blessed lawyers’ use of attorney internet forums to get answers to tricky legal questions, as long as the query does not give up too much information about their clients' identity.
The opinion pointed out that Disciplinary Rule 1.05 prevents lawyers from knowingly revealing confidential information about a client, and Rule 1.05(a) broadly defines the term “confidential information” as all information protected by the attorney-client privilege, as well as some unprivileged information provided by the client or acquired by the lawyer during the representation of the client.
However, not all lawyer-to-lawyer consultations involve the revelation of confidential information, and inquiring lawyers may consider it necessary to provide a certain amount of factual context to obtain useful feedback.
And the opinion notes that disciplinary rules have several exceptions when it comes to revealing unprivileged information about a client, including Rule 1.05(d)(1), which allows such revelations when a lawyer is authorized to do so in order to carry out the representation; and Rule 1.05(d)(2), which allows it when an attorney has a reason to do so to carry out the representation effectively.
“The Texas Disciplinary Rules of Professional Conduct do not categorically prohibit informal lawyer-to-lawyer consultation for the benefit of a client, whether the consultation occurs in an online discussion group, an in-person meeting, or otherwise,” the opinion states. “However, inquiring lawyers must honor their duty of confidentiality."
“If possible, the inquiring lawyer should limit such consultation to general or abstract inquiries that do not disclose confidential information relating to the representation,” the opinion continues. “If it is not reasonably possible to address the issues in question using a general or abstract inquiry, a lawyer may reveal a limited amount of unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation.”
Rothenberg, who teaches CLE courses on legal ethics, regularly warns attorneys that they can’t rely solely on advice they get in forums in answering a client’s legal question.
“It’s a great starting point and it can save you time performing the initial research,” Rothenberg said. “But after looking at the answers provided over the course of two years, I would absolutely not to rely on those answers as the gospel truth all of the time.’’
Rothenberg also cautions that the answers provided in the Facebook group are sometimes wrong. And no lawyer wants to tell a client they made a legal mistake based on something read on the internet.
“The best way to describe it—if you look at the ethics rules, there is nothing against the rules if a lawyer wants to go to a trial wearing a salmon as a neck tie,” Rothenberg said. “It’s not against the rules. But that doesn’t make it a good idea.’’
Jnana Settle. Courtesy photo