Thursday, April 28, 2011

The #1 rule of professional responsibility in the news

This lawyer broke the #1 rule of professional conduct: Don't have sex with your client.

*It is actually Model Rule 1.8, but, even a law student who sleeps through Professional Responsibility remembers this rule. It's also the rule that law students cite when attempting to explain to their family over Fall Break, that yes, lawyers are ethical, and yes, we have rules that we have to follow.

Friday, April 22, 2011

Lawyers, where we're going we don't need lawyers....

At the ABA Techshow 2011, lawyers from across the country came together to discuss, among other things, the future of law practice as related to technology. Please go over to the ABA Journal to read a full article on the discussion. One area I wish to highlight, however, is Carolyn Elefant's discussion of websites such as lawpivot, which allow a person with a legal question to request information from attorneys over the internet.

The running theme under the umbrella of law and technology is that no one is really sure what rules of ethics apply over the internet. Lawpivot is just one more sight that opens up a large can of worms of questions: Is a lawyer client relationship created with each lawyer response? Are conflicts checks being run before the attorney opens the email? The "=How it works" section of the site does not contain disclaimers regarding lawyer-client relationships.

Putting aside the issues of relationship forming and client confidences, isn't crowdsourcing a legal question a very very bad pond to dip our feet in? Confession: I am currently a 3L about to graduate from law school, so my knowledge of the practice of law is limited to my classroom internship/externship/clerking experience. However, I can say with certainty that the practice of law is not an exact science. Isn't this technology forcing the (prospective?) client to decide what attorney he or she believes has the "right" answer? Therefore, isn't it the attorney's best interest to search for the answer that will undoubtedly win the client the most money? Isn't this perpetuating a more litigious society, rather than one that wishes to only bring suit when it is prudent to do so?

Just so we are keeping track, we now have potential violations of the following Model Rules:
1.6 (client confidences), 1.7 (Conflicts of interest: current clients), 1.9 (Conflicts of interest: Former clients), 3.1 (Meritorious Claims and Contentions)

It is my opinion that this is one example of how technology is hurting, rather than helping, the practice of law. (This leads me to a famous quote in Back to the Future, Part II: ‎"The justice system works swiftly in the future now that they've abolished all lawyers." What is the purpose of going to law school for 3 years, taking and passing the bar exam, being sworn in, and paying bar dues only to be a 'crowdsourcing' lawyer? Why even bother with licensing when you can crowdsource?)

Thursday, April 21, 2011

Big government's influence on freedom of speech

At this year's ABA Techshow the subjects of the growing use of technology in the legal field was at forefront of the conference.

Here is an interesting video on the effects of the regulation of the Internet. The "effects" which hover over this regulation, of course, are First Amendment free speech issues. For the presenter, the

biggest policy problem concerning Internet regulation—whether it's music-sharing or the dissemination of diplomatic cables via Wiki Leaks—resides in the reality that wealthy campaign financiers, including record labels and copyright holders, can influence the government far greater than the average citizen.

Wednesday, April 20, 2011

How should the ABA respond to lawyer blogging?

žIn the introduction blog, I discussed the issues that would be addressed in this blog as follows:

1. Under what circumstances should the Model Rules of Professional Conduct govern a lawyer's participation in blogs, given that such activities often have both advertising and non-advertising functions?

This question is indirectly answered in this entry.

Here, I argued that due the increased privacy issue of lawyer blogs (due to the ability of lawyers to advertise on facebook as well as other concerns), a Went for It rule of the ABA would not only be constitutional, but recommended.

I would argue that it is necessary, as this blog has addressed, to have rules that specifically address lawyers’ use of social media.Model rule 7.3 addresses the issue of in-person contact of lawyer. The comments specifically address the issue of ‘real-time electronic communication. Furthermore, Model Rule 7.1 addresses the lawyers’ use of false or misleading information. However, based on all of the concerns previously mentioned in this blog, the combination of these rules does not adequately address lawyers’ use of blogs to solicit services.

Therefore, a new rule should be implemented by the ABA, which states the following:
Any lawyer who intends to use a lawyer blog to solicit lawyer services shall report the web address to the state bar. The comments would then define what is meant by lawyer blog (any website ran, maintained, or written by a lawyer who is licensed under the state bar) and solicitation of services. In addition, the comments would address the fact that the lawyer must keep the state bar updated if the link changes or the lawyer moves its blog to another site.

I realize that there is concern that this new rule may create a substantial amount of duties for the state bar associations. However, as my research has shown me, the practice of law is moving towards the paperless age. It is best for the respective state bars to get a ‘handle’ on this problem now, before the practice of law diminishes to one that is not respected by the layperson.

The second question was phrased as follows:

2. Should the Commission draft a policy statement for the House of Delegates to consider or a white paper that sets out certain guidelines regarding lawyers’ use of blogs? Alternatively, or in addition, should the Commission propose amendments to Model Rules 7.2, 1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?

In this entry. I made the statement that lawyer speech, when not involving advertising, deserves a heightened level of protection. Lawyer blogs are no exception. However, due to increased usage of blogs and other social media, lawyers need guidance on how to ensure they remain ethical when using these sites. Accordingly, it is necessary for the ABA to, at minimum, insert comments into some of the rules to tell lawyers how to behave.

Here is what I would add to each of the above rules:

Model rule 7.2: Nothing needs to be added, as this is the rule of attorney advertising which deserves a lower level of protection.

Model rule 1.18: Prospective Clients: A comment may need to be added which indicates that this rule also applies to contact between a lawyer and client on lawyer blogs, as well as in the comments of a blog.

Model rule 8.4(f): Misconduct : This rule has only minimally been discussed on this blog, but a comment may need to be added that addresses the issue of lawyers being friends on facebook with judges. This topic is outside the scope of lawyer blogging but relevant to the issue of lawyers’ use of facebook.

Model rule 4.2: Persons Represented by Counsel, and Model Rule 4.3: These rules should include a comment including the provision that the contact between a lawyer and non-client on a lawyer blog or other social media still constitutes communication.

Model rule 3.6: Trial Publicity: This rule should also include a comment stating that this publicity also applies to lawyer blogs, including comments in lawyer blogs.

Model Rule 1.6: Client confidences: This rule is one that requires a comment to discuss anonymous lawyer blogging.

In this blog post I discussed how anonymous lawyer bloggers are subject to the same regulations as public lawyer bloggers. A comment to rule 1.6 should indicate the following:

Anonymous blogs are still subject to these rules.

While this is a fairly simple statement, it is my belief, as previously discussed, that many lawyers believe they are escaping the regulation of the state bar by writing their blogs as anonymous lawyers. In the next ten years, the legal profession will continue to change, and I believe that blogging will become even more common than it already is. With anonymous speech, it is irrelevant whether the client’s confidences are actually being disclosed to the Internet; rather, I would frame the issue as one of professionalism. If clients know that lawyers blog anonymously, they have a fear of being ‘made fun of’ on their lawyers’ blog. Doesn’t this make an argument that it is important that these blogs are still regulated, due to the overarching concern for lawyer professionalism in the ABA Model Rules?

3. Can lawyers create online discussion boards without disclosing that the discussion boards serve a client development function? If lawyers leave comments on such discussion boards or on blogs, are those comments subject to the Model Rules of Professional Conduct? Should the Commission offer a policy statement or white paper that sets out certain guidelines regarding lawyers’ use of such sites? Alternatively, or in addition, should the Commission propose amendments to Model Rules 1.18 or 7.2 or the Comments to those Model Rules in order to explain when these activities might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission offer?

This question was answered above, with referring to the fact that comments on blogs should similarly be regulated.

Tuesday, April 19, 2011

Wednesday, April 13, 2011

Lawyers who ignore social media=cavemen who refuse to hunt

The ABA Techshow was held on Monday, where co-presenters Robert Ambrogi and Reid Trautz shared tips on lawyers’ use of social media as a marketing tool. They also advised the audience to not “overreact about ethics rules. Follow the same etiquette for sharing (and common sense) that you would at a professional cocktail party.” I thought this was an interesting statement, seeing as there is great disagreement over the Internet on the role of ethical rules as applied to blogs. While new lawyers may, presumably, understand the inner-workings of social media better than those that have been in the profession for a substantial amount of time, it is still clear that no one knows what rules apply and what rules don’t apply. I will discuss later this week what changes I deem necessary to the ABA Model Rules.

Friday, April 8, 2011

Update on self-policing of lawyers

Here is a follow-up to this post. This entire debacle presents a further argument that attorney advertising on social media requires further regulation. However, based upon the blogger response, a lawyer blogger might argue that attorney regulation is not necessary due to the sort of ‘self-policing’ that takes place amongst the lawyer community.

Tuesday, April 5, 2011

Social media requires further self-policing of the profession

Brian Tannebaum's blog presents an interesting angle on lawyers and the use of social media. In this entry of his blog he calls out another lawyer blogger for being “na├»ve” when the lawyer blogger commented that it is rare for lawyer bloggers to represent themselves.

He also discusses how “futile and paternalistic” it is to call lawyer bloggers out on the inaccuracies of their statements. There are many things to discuss about Mr. Tannebaum’s statements.

1. Model Rule 8.3 requires lawyers to report other lawyers who they know have “[c]ommitted a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” Here, though, in most cases, the lawyer who fails to report would make the argument that they did not know the potentially unethical lawyer was committing an ethical violation. Rather, they had merely a strong suspicion.

2. Mr. Tannebaum strongly suggests (if not outright states) that lawyers who use marketing services are acting unethically by doing so. This is a subject I have discussed on several occasions on this blog. In short, the lawyers’ use of marketing tools to ‘sell’ themselves is, in my opinion, one of the best arguments for why the ABA needs to create strict requirements when it comes to lawyers’ use of social media.

3. Mr. Tannebaum strongly suggest that even if there is no outright ethical violation of lawyers’ use of social media, the lawyer’s actions force their reputations to take a hit. Said another way, a lawyer who uses social media walks a tightrope between making themselves available to the public and hurting their reputation. The fine line lies where the lawyer fails to accurately paint a portrait of their professional skills on social media. Therefore, even if there is no official ethical violation reported to the state bar, those who act unethically are being ‘punished’ via the self-policing of lawyers who suspect the statements are inaccurate. This policing comes in the form of being called out on fellow lawyers’ blogs.

4. Mr. Tannebaum also makes the statement that lying is common amongst lawyers who use social media. What is the value of this statement, though? Isn’t it pretty well assumed that lawyers lie? I think that even if this statement is true, it doesn’t take away from the fact that clients trust their lawyers to tell the truth to them. This further strengthens the point that social media needs to be regulated in the same, if not stricter, manner as other sources of media.