There are groups online consisting of thousands of attorneys who pose questions and hypotheticals to each other. From time to time a conflict arises within the group asking whether there a limit on what is asked or stated to thousands of other attorneys should be imposed by the group itself. A salient dispute is raised over whose responsibility it is to undergo a conflicts check. The Administrator of the group— who serves as mediator-arbitrator when conflict arises there– is sometimes asked to offer an evaluative response. The purpose of the response is to bring about resolution. The following recent response to attorneys addressing the limits of communication within the closed group redirects the proposed conflict to the individual, reducing the conflict to a matter of personal responsibility:
Each individual in each unique circumstance should use reasonable prudence in posing a question in this closed attorney group environment— just as we would anywhere else.
Not all *facts* provided are necessarily factual; names, locations, characteristics, dates, and so on can be changed to make identification attempts a fruitless venture. Most posts are not of such a nature as to reveal otherwise publicly available information. It’s actually quite rare that something is said that gives some kind of strategic benefit to an opposing counsel. The information obtained could even be misinformation to throw off an opposing counsel.
Accordingly, each of us self-imposes limits of latitude and freedom because the individual is best situated to self-regulate to the extent necessary under the circumstances. Each individual decides to ask, mention, specify, comment, explore, respond, assess, and reflect. We are professionals and adults in a congenial environment for the purpose of communication, even about difficult topics, and there should be freedom and latitude here to explore legal theories, ideas, and approaches. Quite literally, just as in law school or at an interactive CLE, we learn by asking questions. It’s up to the individual to design well the question asked.
We truly learn from the impressions of others. We grow in real time from the sharing and reflecting. We are all better for the information and the afforded freedom found here because of each of you who takes part in good faith for the purpose of advancing understanding and mentorship.
As Mack Travers has expressed: “Lawyers have been telling “war stories” for as long as there have been lawyers. In England, the source of many of our laws (5.001TCPRC) and traditions, Barristers are “Called” to the profession only after they have attended the required number of meetings at their Inn of Court. At these meetings, food is consumed, War Stories told, and instruction received. Without ‘War Stories’ whether in a 16th century Inn of Court, or on FB, education of our Profession would suffer.”
Edited September 18, 2018: A future blog post will incorporate a new Ethics Opinion on this topic found here: https://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-673
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.