Be Careful With That Group Chat, You Don't Know What Company You Keep

First, greetings from the Covid Penalty Box. The plague finally hit my household last week, and I’m in time out for a bit. I’m feeling okay enough, but I am not 100%. The good(?) news is I was supposed to be on vacation this week so my calendar was already clear. Sigh.

Anyway, I am working a little bit this week (to make up for the work I couldn’t do while actively sick last week) and I have found I have the attention span of a banana, which I suppose is to be expected. Needless to say, I am not the last set of eyes on anything this week (except for my incessant boredom tweeting, and I guess this blog entry, but hey, if I mess this up you all will let me know).

So, when I came across this story in Above The Law, I added “don’t send any work-related group texts” to my mental list of what not to do this week. In short, a prosecutor belonged to a group chat and texted the group about a judge’s adverse evidentiary ruling in homicide trial. Problem was, the judge (a former prosecutor) was still in the group chat, and this message constituted improper ex parte communication. The defense moved for and got a mistrial.

A reminder, 1.6 generally allows lawyers to reveal confidences seek guidance about their ethical compliance and may allow use of hypotheticals to discuss issues related to representation, but I don’t think complaining about a judge’s ruling, to a group chat of people who are not all within your office, complies there.

I don’t use the group chat function too often, and really not at all for work (other than to organize logistics for hearings and such, and there’s no danger for that this week). But I know plenty of lawyers do, and there are also listservs and mailing lists where the risk is there (and possibly greater, if you have no real way of knowing who subscribes to the listserv). And at least in Wisconsin, the ethics bar is small, and I know that if I post something about a real expert matter, malpractice case, or fee arbitration case I’m working on to my legal ethics listserv, there is the possibility that someone consulting for the other side or otherwise involved is reading and will recognize my fact pattern. As far as I know no Wisconsin regulators or disciplinary referees are on the list, but I am still careful there, and wherever you are, you should be too.