Monday, February 21, 2011

Social media =/=In person contact

I found Nicole Black’s response to the September paper on Ethics 20/20 to be intriguing. Her thesis to the September paper focuses on the fact that “[o]nline interaction simply is an extension of offline interaction. It does not, by virtue of its unique format, merit a separate category requiring additional, more stringent oversight. ” [1]

I believe this characterization of social media drastically oversimplifies the medium. As I have discussed previously, at length, the differences between blogging and face-to-face interaction are numerous. The largest difference is this: face-to-face, it is significantly more difficult for a person to pretend to be someone they are not.

Let’s take the following example: A male lawyer enters an accident victim’s hospital room. He is middle-aged and disheveled-looking. He tells the woman he can represent her in a lawsuit against the driver of the other car. The accident victim takes one look at lawyer and realizes that he can’t be trusted. The accident victim tells the lawyer to leave her room.

Now take this same example, but over the internet: A lawyer links an accident victim to his blog via facebook. The lawyer pays for services on facebook that allows his blog address to show up on the sidebar of anyone who mentions car accidents on their facebook. The woman clicks the link, and is lead to the same lawyer’s page as example #1. The picture on the blog contains one taken of the lawyer from 15 years ago, wearing a fresh-pressed suit, with a fresh haircut. The woman decides this is a man she can trust to represent her.

While there is little that can be done with respect to how images are perceived over the internet, the fact is that, arguably, the woman may have felt more coerced after being contacted over the internet than she was when the lawyer came to visit her face to face.

Not only is there an issue over the appearance of the attorney, there is also the issue of a perceived feeling of safety while on the internet. Due to the perceived anonymity, people feel as though they can be genuine on the internet; therefore, they feel that others are also being genuine. This is obviously a fallacy on both counts; however, it may result in greater use of coercion over the internet than would have otherwise existed in person.

Therefore, I would conclude that, while the actual degree of the new rules is still somewhat uncertain. However, one conclusion is certain: the current ABA rules do not adequately address lawyers’ use of social media. It follows that the rules need to be amended, or new rules must be created to meet the growing need for such regulations.

[1]COMMENTS, Technology Working Group Issues Papers, “Client Confidentiality and Lawyers’ Use of Technology” & “Lawyers’ Use of Internet Based Client Development Tools” , Nicole L. Black, p. 10-11

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