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New legal ethics rules not required for social networking and social media

There are no special legal ethics rules from bar associations or state supreme courts governing a lawyer’s conduct while golfing, attending Rotary and Kiwanis meetings, or networking at conferences.

That’s strange, since there are more lawyers participating in those activities than in social media and online social networking. And God knows bar association officials and supreme justices know more about what goes on at a golf outing than in social networking.

But hey, never let common sense and your limited understanding of things get in the way of passing rules limiting lawyers’ activities which could make a real impact on people’s lives, make the law more accessible, and improve the image of the legal profession.

The American Bar Association has decided that the ABA needs to find out whether existing legal ethics rules do enough to govern social networking. They’re doing it through the ABA Commission on Ethics 20/20, created by ABA President Carolyn Lamm. From the commission’s website:

…[T]he Commission will perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments. Our challenge is to study these issues and, with 20/20 vision, propose policy recommendations that will allow lawyers to better serve their clients, the courts and the public now and well into the future.

Chaired by Attorneys Jamie Gorelick and Michael Traynor, the commission has issued its Preliminary Issues Outline (pdf) in which the commission identified those things it will consider and study.

Included in the issues to be studied:

  • Do the ABA’s Model Rules of Professional Conduct and existing disciplinary enforcement mechanisms adequately address the use of social networking sites by lawyers and law firms?
  • Do the Model Rules and existing ethics opinions adequately protect clients from inappropriate use by lawyers of available technologies, (e.g., the use of cellular telephones in public locations, blogging, Tweeting or the indiscriminate use of the “reply all” function in e-mail)?

Ask yourself: do we need special legal ethics rules limiting our use of everything from cell phones to blogs to Twitter to Facebook? Do we need people, who may be fine lawyers in their right, raising these issues when they don’t even use social networking and social media? When they have not a clue what social media and social networking is really all about.

Social media and social networking in reality is nothing more than a reflection of how we’ve behaved as lawyers for the last 150 years. We build relationships in a real and meaningful way. We spread info by word of mouth and people’s reputations grow or decline as a result.

By getting out and engaging people (networking as lawyers described it when I graduated from law school 30 years ago), we build relationships with our targeted audience of clients, prospective clients and referral sources. Through networking we influence what information is shared and by who as well as influence how we are perceived. It’s who we are as lawyers and it’s what we do.

So what if Bill Gates and Steve Balmer fulfilled their dream of getting of getting a computer on everyone’s desktop. Nothing has changed, except we use a computer (and now mobile devices) to network and build relationships.

Just like lawyers began to use the phone to meet people, build relationships, and conduct work, lawyers now use blogs, Twitter, LinkedIn, and Facebook. And they’ll be using 19 other things via computers we’ve never heard of in the next ten years – all to build relationships with people.

Searching at LinkedIn, the largest professional network in the world with over 700,000 people listing the practice of law as their profession, I couldn’t find a profile for Jamie Gorelick. Michael Traynor and Carolyn Lamm had two profiles each at LinkedIn, with a total of 8 connections between them. Not exactly champions on the social networking front.

We have core ethical principals we must follow as lawyers, whether using a phone, schmoozing at a conference cocktail party, writing a letter, blogging, posting to Facebook, or Tweeting.

  • Don’t blow client confidences.
  • Don’t give legal advice (just general information for education purposes) when speaking among the public.
  • Don’t do anything where a reasonable person could argue there was an attorney client relationship.
  • Don’t say anything misleading about your capabilities or any other matter.
  • Don’t solicit work.
  • Don’t violate conflict of interest rules.

There are more rules, they’re more precise, and they’re more eloquently spelled out by state supreme courts and state bar associations. The point is we have rules that govern our behavior as legal professionals.

Adapt your use of new technology so as to uphold the ethical standards we stand for as lawyers. Don’t create new rules to adapt to the new technology. To do so chills good lawyers from using technology that serves the public, makes the law more accessible to the public, and improves the image of our profession.

  • http://misterthorne.org Thorne

    So . . . if an attorney’s never gone driving under the influence, he’s not qualified to handle a DUI case?

  • http://ethicsguru.blogspot.com/ James McCauley

    I think you oversimplify the issue. As I recall, my agency and other state bars found it necessary to tweak the advertising rules to catch up with internet and electronic technology. For example, it is certainly within the realm of reasonable argument that the rules regulating solicitation don’t apply to tweets or exchanges on Facebook unless the rules are rewritten to say so. Most of the advertising and solicitation rules are quite specific about the media employed and therefore revision of the rules may be required.

  • Mike Abbott

    Good article…I agree that a lawyer should have first-hand knowledge of a subject prior to writing laws that would apply to people who do.

  • http://texasappellatelawblog.com D. Todd Smith

    Kevin, the State Bar of Texas Advertising Review Committee has apparently come to the same conclusion as you did. Texas has not adopted an ethics rule specific to social networking, but the ARC recently released Internal Interpretive Comment 17, which specifically references social media and blogs. Basically, one must fall back to the regular ethics rules. I’ll be publishing something on it soon.
    Look forward to seeing you in Ft. Worth next week.