Bench & Bar of Minnesota, the official publication of the Minnesota State Bar Association, joined the forces of lawyers, conferences, publications, and associations who are scaring lawyers from using social media. Perhaps not on purpose, but by emphasizing the risks of a lawyer using social media over the rewards they’re having that effect.

Look at the article published today in Bench and Bar of Minnesota entitled ‘Social Media for Lawyers.’

Sounds good. I’m a Minnesota lawyer looking to learn more about blogs, LinkedIn, Twitter, and Facebook. Starting off the article tells me about the popularity of exactly these forms of social media. Even tells me that social media can be a resource for learning information and demonstrating my expertise in a particular area of law. Can’t wait to read.

What do I get? Red flashing lights in the form the of risks in using social media.

  • Inadvertent Attorney-Client Relationships
  • Confidentiality
  • Conflicts of Interest
  • Communications and Advertising
  • Unauthorized Practice of Law
  • Improper Contact and Misconduct
  • Duty of Candor

Certainly those are legitimate questions and concerns. No sane lawyer is looking to create liability or act unethically in their professional and client development activities.

And no one, especially me, is saying the Internet is an ‘ethics free zone’ for lawyers. Client and professional development requires that we act ethically as lawyers whether networking at a conference at a golf resort or networking on LinkedIn.

Abigail Crouse and Michael Flom, both principals of Gray Plant Mooty, an excellent law firm based in Minneapolis, wrote the article. Gray Plant already blogs and is considering expanding its social media presence.

I’m sure Flom and Crouse did not intend to scare fellow Minnesota lawyers from blogging or using social media. I also don’t know what the editor charged with this story told the authors. It may have been to do an article on the risks of social media. Crouse has expertise in employment law and Flom is extensively involved in legal ethics and lawyers’ professional responsibility.

But if I’m young solo practitioner doing family law in Marshall, I’m thinking twice about starting a family law blog after I read this article. A blog that was going to be dedicated to serving the people of Southwest Minnesota struggling with divorce, support, and custody issues. A blog that would connect me with leading family lawyers in the Twin Cities and nationally for mentoring and professional growth.

From speaking on blogging and social media around the country, I sense that lawyers have a keen desire to learn how they can leverage the power of social media. For client development and for professional growth.

There will always be a lawyer or two in the audience who grills me on the perils of social media. Rather than dismiss the ethical issues and liability risks, I explain how lawyers use social media in an ethically permissible fashion. How lawyers conduct themselves in a manner that does not risk undue liability.

I also explain that the situations where lawyers have gotten into trouble using social media are very few and very far between. That though lawyers may hear of the sensational, it’s the sensational that makes for good news – and that the sensational is the exception not the rule.

As an editor, conference coordinators, author, or speaker, you’re highly influential. Please temper your discussion on the risks of social media. Sure talk risks. But the rewards to lawyers using social media are so great. Mention them.

  • In social media lawyers are looking at an opportunity to listen to and engage people in a real and transparent way.
  • The legal profession has an opportunity to improve its awful reputation. Rather than bar associations talking of improving our reputation and doing a ‘law day’ a year at the local mall, we could have local lawyers with practical expertise on all sorts of areas of law sharing their insight and answering common questions on topic-centric blogs.
  • Lawyers with limited marketing budgets could get work the old fashioned way. By networking. By building relationships. And by building a reputation as a trusted and reliable authority. Sure beats thinking you have to compete with 1-800-Injurylaw pasted on the side of a metro bus.
  • Lawyers can use social media and social networking to connect with leading lawyers in their area of the law – no matter where those lawyers are located. They’ll be given the opportunity to network with and learn from lawyers they could have only dreamed of meeting.
  • Lawyers could go after the type of work they really want to do – the stuff they have a passion for – and do it for the type of clients they want to serve. Beats feeling trapped doing what’s needed to be done, like it or not, to keep the wolves away from the door.

No more ‘pitfalls and perils’ articles and presentations. Let’s talk about what’s really going on. Let’s recognize the risks while emphasizing the rewards.

Do that and we’ll improve the lives of lawyers.

  • Thanks for posting this Kevin. I read the article earlier today and appreciated your comment. All your points are 100%. I think social media is often referenced as something new when it’s actually traditional marketing just packaged differently. Act as if you would at a traditional conference.

  • shg

    Don’t I get any credit for saying that marketers want the internet to be an “ethics free zone?” Where’s my link love?

  • Kevin understandably sees the glass half-empty as his focus is to promote lawyers’ use of social media. Both the introduction to the article and the article itself discuss “opportunities” and “openings” that social media offer lawyers alongside the risks. Far from seeking to chill lawyers’ use of the new media, our intent is simply to ensure they have a prudent and well-rounded understanding of these media when they do.
    Judson Haverkamp, Editor
    Bench & Bar of Minnesota

  • Judson, you can’t be serious that you are offering a balanced approach to a lawyer’s use of social media with this artiicle. Rather than recognize that 95% of the article is on the risks and perils of social media and 5% is on the explosion of social media (little on how lawyers are using it to serve their community and enhance their reputations), you discount what I say because I ‘promote lawyer’s use of social media.’
    I’m not promoting lawyers use of social media. My goal is to improve the lives of lawyers, to improve the image of our profession, and to serve the public as best I know how.
    If something like social media is doing these things in a demonstrable way, I am going to share the word on this. I am not going to social media may be powerful in this regard and then spend 95% of my time warning of their perils. No one would ever try social media if I did that.
    Ask yourself these questions. Is the solo practitioner in Marshall, who returned home to practice family law, after going to law school in the Twin Cities, more likely or less likely to use social media for professional development and client development after reading the article? Is this article likely to be used as ammunition by leaders in large law firms who don’t want their lawyers using social media? Is the article apt to be used by bar associations who may be looking to reign in the use of social media by lawyers in their states?
    I’m not saying jump on the OKeefe bandwagon, I’m just saying let’s be a bit balanced here.

  • Scott, I thought it was me who coined ‘ethics free zone’ in an email exchange with you this week. You were the first to pen on it the blogosphere though. I’ll buy you another Guiness next time I see you for my faux paus in not linking to you.

  • shg

    Nuh Uh. I used in a comment on 11/9 to your “white paper” post of 11/8, and you then picked it up in your email later that day. I win!!!
    By the way, one aspect of this discussion that requires some serious refinement is that we talk about blogs as if they’re all the same, knowing full well that their not. Some are completely non-commcercial speech, while others are flagrantly commercial, and there’s a full spectrum in between. Any discussion of whether blogs are covered by ethical regulations (and they are, as is everything lawyers do, which doesn’t make them prohibited but merely covered) needs to specify what we’re talking about. What we really need is a more precise choice of words to describe the spectrum of blogs.
    Maybe, with better definition, we might find that we have greater agreement than it appears.

  • Wade

    While I agree that the article focused almost exclusively on the risks of lawyers using social media, I had no problem with that limitation in scope. Most of us who are reasonably tech-savvy are already using social media in our private lives and understand the potential rewards of incorporating that medium into our legal practices. At this point, trying to convince people that they need to have an online “brand” is like preaching to the converted. What we really need are tips and tricks as to how best leverage available technologies to our advantage, and pitfalls to be avoided, both ethical and otherwise. Like it or not, ethical rules in our profession tend to lag well behind the technology curve, and I am appreciative of any guidance (such as the MSBA article) with regard to these obligations.

  • Gyi

    I’m interested in the commercial vs. non-commercial blog distinction. What are the critical factors that take blog speech from non-commercial to commercial?

  • Stuart A. Carpey

    Great post. Since I started blogging a few years ago my marketing message has become much more focused. There’s is no doubt that I use my blog as “commercial speech,” but I also get the message to consumers who read my blog of the pitfalls facing them in any personal injury or insurance case they might find themselves in, (my area of practice). I see that as an important message, and since I can’t write for the Philadelphia Inquirer, my blog provides a valuable tool for the public as I see it. That’s good lawyer ethics in my world.

  • I agree with Kevin’s comments as to the one-sided view of the article. But, unfortunately, such a perspective is necessary. For example, I ran across a law firm website that expressly touted ability to benefit clients through its connections with “empowered decision makers” serving as official representatives in the federal, Michigan, and Nevada governments. See http://www.lipsonneilson.com/practice-areas/international-law-practice/). This representation directly implicates the prohibition against (at least in Michigan) stating or implying an attorney has the ability to influence improperly a government agency or official. And this is a website, i.e., the type of relatively static content that you would expect to go through several layers of review, including an ethical analysis. I can only imagine what ethical issues could arise if a firm like this was active in a more dynamic area of blogging where content is generated on a regular basis? So, similar to legislation, I can understand why the focus of the article was on the lowest common denominator. In other words, blogging risks and benefits really must be carefully addressed to uphold the virtues of our profession and to not let a few lawyers/law firms undermine the significant value many legal blogs offer the public.

  • It’s quite clear from the article that social media is gaining acceptance with lawyers simply because it offers another medium through which lawyers can do what they have always done: connect with, interact with, and educate their local communities.Realy a great post!