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.

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