TECHNO ETHICS: Anti-Social Networking

Vol. 29 No. 3

By

James Ellis Arden practices law in the Los Angeles metropolitan area with a focus on legal malpractice, civil litigation, and appellate matters.

Lawyers live with the dichotomous need to work and to advertise themselves at the same time. This task may be a little easier (and more fun) for attorneys who host websites and blogs or use social networks for marketing.

Attorneys began using the Internet for marketing by putting up static, “billboard” websites. Some went further, adding interactive communications upon realizing this would make it possible to sign up clients without even having to meet with them face-to-face. Some of those interactive web pages evolved into blogs. Finally, once lawyers realized “The Facebook” and its ilk offered us the most cost-effective means to reach the masses, we joined up just like normal people.

 

Technological progress is like an axe in the hands of a pathological criminal.—Albert Einstein.

On February 16, 2012, The Los Angeles Times published an article by which I found out that anyone using Twitter’s “Find Friends” feature on iPhones and Android phones “was also sending every phone number and e-mail address in his or her address book to the company.” Turns out there is an iPhone app called “Path” that downloads iPhones users’ entire address books without telling them. Oh, and it was discovered in April 2011 that iPhones have been keeping precise and detailed year-long logs of users’ physical locations.

Nice. Most people would probably prefer to be told about these things before their locations were mapped and their address books were secretly sent out to unknown third parties.

Our laws, ethics rules, and codes of professional conduct have never been able to keep up with the pace of technology development. We update them from time to time, but such changes are always reactive, not proactive. Strangers can take your address book and follow your footsteps without your even knowing simply because it is not yet prohibited.

The ABA Commission on Ethics 20/20 was specifically appointed to look at the impact of technology and globalization on the legal profession and to determine if these developments required changes to the ABA Model Rules of Professional Conduct. That client confidences are no longer kept just in file cabinets but on laptops, smartphones, tablets, and in the cloud, and that connections with potential clients are sought not just through print ads but via social networks, lead generation services, and e-coupon sites were all prominent considerations for the Commission.

In its initial proposals (released June 29, 2011), the Commission recommended amendments to three Model Rules: Rule 1.18: Duties to Prospective Clients; Rule 7.2: Advertising; and Rule 7.3: Direct Contact with Prospective Clients.

In its December 2011 Summary of Actions, the Commission recommended changes in confidentiality rules, namely:

  • Rule 1.6, to make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent disclosure and unauthorized access;
  • Rule 4.4, to clarify a lawyer’s obligations upon receiving confidential information that the lawyer was not supposed to receive, including confidential information contained in e-mails, hard drives, and data embedded in electronic documents;
  • Rule 1.1, to emphasize that, in order to stay abreast of changes in the law and its practice, lawyers should have a basic understanding of technology’s benefits and risks; and
  • Rule 1.0, to make clear that, when erecting screens to prevent the sharing of information within a firm, those screens should prevent the sharing of both tangible and electronic information.

The Commission also recommended changes to client development rules, namely:

  • Rule 1.18, to clarify when electronic communications give rise to a prospective client-lawyer relationship;
  • Rule 7.3, to clarify when a lawyer’s online communications constitute “solicitations”; and
  • Rule 7.2, to address confusion concerning the kinds of technology-based client development tools that lawyers are permitted to use, and an ambiguity regarding the prohibition against paying others for a “recommendation.”

 

Advertising is legalized lying.—H. G. Wells

Of all the rules that have ever governed the ethics of lawyers, the cardinal rule has always been, “don’t mislead.” States cannot ban attorney advertising, but they can regulate false, deceptive, or misleading advertisements. Bates v. State Bar of Arizona, 433 U.S. 350, 383-384 (1977).

Rule 7.1 prohibits lawyers from making “a false or misleading communication about the lawyer or the lawyer’s services.” The Ethics 20/20 Commission found that Rule 7.1’s prohibition against false and misleading communication is “already applicable to online advertising and electronic communications attorneys use to attract new clients,” so it was not a rule recommended for changes. (California’s truth-in-advertising equivalent is Business and Professions Code section 6157.1; and its truth-in-all-communications rule is Rule 1-400 of the Rules of Professional Conduct.)

South Carolina just reprimanded a solo practitioner, licensed in 2010, for exaggerating about his experience in online profiles and law firm websites. In what other ways might we be hoisted on our own petards?

Does the word “pretexting” ring a bell? Lawyers may not “friend” people as a means of investigating them (see Pretexting, Legal Ethics and Social Networking Sites). Nor may a lawyer hire an investigator to befriend potential witnesses. New York State Bar Association Committee on Professional Ethics Opinion 402 (1975).

Don’t use available technology to surreptitiously examine and trace e-mail and other electronic documents. New York State Bar Association Committee on Professional Ethics Opinion 749 (2001).

Client confidentiality might be violated or a confidential relationship revealed by a statement on an attorney’s website, or by a link to another website. So, too, by a list of contacts on a networking site. For that matter, some social networking sites require users to grant access to all information put up on the site.

You probably shouldn’t quote social network comments verbatim. Comments posted in social networks are not considered to be “in the public domain.” So they may not be usable without a license from the author. Besides, the ease of conducting Internet searches makes it easier than ever to determine who originated a given comment.

Because the Internet so well facilitates communications between people who can’t see one another and probably never met, the possibility for miscommunication is great. So is the possibility of forming an unintended attorney-client relationship and the burden attendant to those duties. Such communications can create conflicts for an entire firm. Given the worldwide reach of the Internet, the unauthorized practice of law is another risk that can arise from careless communications.

Testimonials (in states that allow them) and client comments on an attorney’s website could, in some circumstances, create unjustified expectations in a prospective client. Some sites, such as LinkedIn, permit “recommendations,” from which springs the potential for a negligent recommendation claim.

Speaking of LinkedIn, you probably shouldn’t fill in the “specialties” section unless you are, in fact, certified as a specialist in the subject you want to list.

Likewise, pay no attention to those attorney rating sites—unless you “claim” your profile. If you do claim your profile, pay regular attention to how your profile appears. You own it if you break it. You also own it if you claim it.

If you have a blog and respond to a comment someone posts from a jurisdiction where you don’t practice, you could be considered to have engaged in unauthorized practice of law.

Lastly, be careful about knowing the rules in your particular jurisdiction. Not all ethics rules are created equal. For instance, some jurisdictions treat blogs like websites, and some don’t. In Texas a blog is not an advertisement if it consists of educational information or commentary. In California a website is not considered a solicitation under Rule 1-400, but every piece of letterhead is deemed to be an advertisement. Go figure.

Ethics rules shouldn’t stop you from state-of-the-art marketing or trying out any new technology. Besides, you owe your clients some duty to be successful enough to maintain the quality of their representation. The more you know about what you’re doing, the less the chance you’ll be taken unaware. Not all surprises are good.

 

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