Lawyers and Social Media: Can Legal Advice be Crowdsourced?

Volume 38 Number 1

By

About the Authors

Jordan Furlong is an Ottawa-based senior consultant with Stem Legal Web enterprises. He advises lawyers and law firms on the creation and distribution of online content through websites, blogs and social media, as well as on media and communications strategy generally.

EDITED BY Steve Matthews Web 2.0 column editor Steve Matthews is a principal of Stem Legal Web enterprises. He helps law firms with Web development, publishing and strategy.  Steve blogs at stemlegal.com/strategyblog.

 

There’s an old Peanuts cartoon in which Charlie brown, standing at home plate dressed in full baseball gear and wielding a bat, is surprised to see a football come whistling towards him. The caption reads: “Just when you think you’ve learned how to play the game, someone changes the rules.”

This is a familiar feeling for lawyers, whose grasp of and willingness to trust a given technology seems to arrive just as that technology starts to fade away or morph into something new. It took lawyers years to accept email; now we cling to it as our primary communication and collaboration vehicle when newer and better tools are available. Firms still send print and email newsletters long after other organizations have taken up blogging.

Are we now seeing the same thing happening in social media? Some lawyers are just now getting used to the idea of building their profile and promoting their expertise through social media—publishing expert content on blogs and distributing that content through services like Twitter, LinkedIn, Facebook and Google+. These lawyers use social networks as a means to the end of their personal business development.

Now emerging, however, are social media services that exist primarily to serve clients, not lawyers. Websites like LawPivot and social platforms like Quora, for example, invite users to pose legal questions and offer lawyers the opportunity to answer those questions at no charge in hopes of creating a relationship with the questioner that might lead to a paying relationship down the road. That’s a whole new way to do business for law firms.

The distinction in purpose between a lawyer’s blog and a service like LawPivot is crucial. When a lawyer publishes and distributes information via social networks, she is providing general information to promote her credentials. When a member of the public uses LawPivot, he is asking a specific question and he wants an actionable answer. In the former case, lawyers advance their immediate interests by providing clients something that might be useful later; in the latter case, the roles are reversed.

Can LawPivot, Quora, and similar Q and A services succeed? That depends on multiple factors outside anyone’s knowledge and control. But there are immediate implications for lawyers who use these services—implications that also shed some light on how far and in which direction this trend can take us.

It’s trite to observe that whenever a lawyer answers a legal question in any but the most vague terms, a relationship materializes between the lawyer and the questioner, because the lawyer has provided information upon which the questioner will rely and act. There are, of course, multiple traps lying in wait for the lawyer in such a situation. She might provide an answer based on incomplete or inaccurate information, but that will be no defense against a malpractice claim. Depending on the lawyer’s jurisdiction and its regulators’ view of such matters, there might be unauthorized practice of law implications. There are also professional insurance implications: Would this be covered?

To which one might reply: So what? Ethical rules, after all, are self-imposed quasi-regulatory holdovers from an earlier age of legal commerce. If the future of legal advice really is crowdsourced, then ethical rules will have about as much impact as piling up cardboard boxes to turn back a flood. In a truly social legal marketplace, legal service relationships will be formed, consummated, and dissolved frequently and routinely. Some would argue that everyone will be better for having moved past lawyers’ 19th-century attitudes.

One of the problems with this line of thinking, of course, is that it’s not just lawyers and their ethical rules that really stand in the way of this outcome. It’s clients as well.

The utility of a lawyer’s advice is directly proportional to the amount of information with which she makes her assessment. Privacy may well be a diminishing asset these days, but it is still difficult to foresee a time when people will be comfortable disclosing the details of their deepest personal problems and business challenges in a public forum. Confidentiality is central to the lawyer-client relationship because clients want it that way.

Now, many of these emerging services make it possible for clients to disclose their information “confidentially” to the website in question. Let’s set aside, for a moment, the wisdom of uploading to a faceless website the details of your aged parent’s capacity to make decisions or that dispute with your company’s key supplier. Let’s suppose that a critical mass of people is willing to take that risk and reap the rewards.

If that’s really how things evolve, that’s all well and good, but those kinds of transactions are not social. The whole premise of social media is that it is public, interactive and conversational; when you ask a question on Quora or LinkedIn, everyone sees it. Once you go behind the equivalent of a closed door and disclose your case in private with an identifiable individual, you are no longer in the realm of social media.

That’s why, fundamentally, there are structural limits to just how “social” a legal services transaction can be. The lawyer struggles to provide an answer that’s vague enough to offer self-protection and doesn’t give away her judgment and analysis for nothing; the client struggles to balance the need for specifics with the risk of embarrassment or exploitation. There is a “value zone” in the lawyer-client relationship in which real money is exchanged for reliable directions, and that zone overlaps hardly at all with the public sphere.

What this thought experiment brings home, ultimately, is the importance of emphasizing the difference between the social Web and social media. The social Web is the near future (if not the present) of the Internet. When we talk about “Web 2.0” and its many descendants, we mean that the Web now continuously enables collaboration and the formation of new relationships that continue and develop “offline,” where the most value is created. Smart law firms have already made their Web presence as social as it can be and are reaping the rewards.

Social media, by contrast, is never offline: It is a dynamic, worldwide, 24/7 vehicle for the creation and distribution of content, insight and opinion. For that reason alone, it offers incredible opportunities for clients to learn, for lawyers to market, and for the two to meet. But it’s not a platform for legal service delivery, because it’s public and you can never lock the doors. Once you do lock the doors, it’s no longer social.

Technology offers lawyers unprecedented opportunities to practice and market differently—but those opportunities can turn on a dime, without notice. So get ready to duck: There might just be a football headed your way.

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