Does the Internet Make You Feel Risky?

Oh, yet another excuse to not take responsibility for individual action and blame it on the technology instead.  *sigh* 

Seriously, this article just annoyed me to no end.  The National Law Journal published an article entitled “Lawyers’ Ethical Stumbles Increase Online” and then proceeded to give the most outrageous example of an incredibly irresponsible attorney using email to share pictures of a deceased individual from a case along with lewd commentary of his own in the email. 

First of all, this guy is not using social media; he’s using email.  Email use in the law office at all for any communication regarding a case is not secure because it’s typically not encrypted.  Second, given the immaturity of the action, this is probably the same type of individual who goes out to the bar on the weekend with his buddies and discloses confidential information from cases with them while having a few beers.  I don’t think it’s anything related to a new “method” of communicating that caused this breach, just a question of education on the part of the attorney.  The article then goes on to give several other outrageous examples of attorneys misusing everything from email, to Twitter to blogging in isolated incidents.

Don’t get me wrong. I think it is great that there are so many organizations out there concerned with the use of social media by attorneys.  Surprisingly, there are many attorneys out there that do need guidance on how to use something as simple as email or Twitter to communicate — or refrain from communicating — as the case may be.  I know that the ease of which we chat online through different Internet-based technologies makes it seem like the risk is higher.  But I would disagree and say that it depends on the individual and their knowledge and use of the technology. 

For me, I’m way better off communicating by writing.  I can edit, re-edit, delete, be absolutely sure what I am saying or sending before it goes out.  Get me on the phone, put me on the spot in front of a group of people and it’s a completely different situation. My tongue ties, I end up saying more than I should or am too shy to speak when I need to, and usually regret my speech or omissions later.   This preference  just depends on your personality and skills.  Not everyone communicates the same way.  

However, we all learn ways to cope with other methods.  As I practice public speaking more I’m learning to think longer before I speak or to ask if the audience understands me clearly before jumping onto another topic.  Similarly, attorneys who are new to social media and perhaps not as educated about technology and security issues need basic guidance for the best ways to use those methods and they need to practice them – not jump from using a fax machine and phone into marketing their firm on Facebook and Twitter. 

Just because everyone is using social media doesn’t mean that all attorneys should use it unless they know how to draw the necessary lines that it requires.  That’s one of the downsides to being an attorney – no matter where we go or what we do, we are legal professionals and can’t escape that by going online.  It’s a huge responsibility, almost a burden sometimes when you just want to hop on Facebook and chat with your college buddies about things that you would prefer your clients and colleagues didn’t know about.  But as professionals in this new media, I think we have to be careful about those lines that we draw and remember that even when we are not working on our clients’ case, they are still our clients and we carry that burden of protecting their information. 

But adding ethics rules restricting the use of social media is not the answer because many of us do use these methods to communicate effectively and efficiently with our clients and other attorneys and we do respect the technology and use it responsibly.  The few bad seeds should not ruin this for the rest of us.  Remember, the methods that we attorneys find to cut costs and more efficiently work with our clients trickles down to the clients in reduced legal fees and more accessible legal services. 

Legal ethics expert Michael Downey said lawyers’ tendency to be risk-averse seems to fade away on the internet. “They’re disclosing confidences, talking about pending matters, they take potshots … like everyone else,” said Downey, immediate past chairman of the American Bar Association’s Ethics and Technology Committee and a member of the ABA Center for Professional Responsibility.

Social media must be like a shiny new toy for some attorneys that they are eager to try out and show off.  Maybe that is what makes their actions online seem more “risky.”  Maybe it’s because some of these communication methods so closely connect our personal lives and personalities with our professional that some attorneys have trouble holding their tongues.  I’m not sure, but even Mr.  Downey, cited above, “suspects the current rules ‘are probably adequate.'”  

My personal opinion is that this is yet another learning phase for our profession that we are smack in the middle of.  The high-profile examples of stupidity cited in this article are the lessons learned by others. These stories will teach other attorneys who are not using the technology responsibly about the risks. 

For those attorneys who prefer to educate themselves about technology, security and social media BEFORE jumping in (& I highly suspect this is still the MAJORITY of our risk-averse profession), the ABA LPM and state bar associations can provide that education and guidance.  Rules and regulations that will stay in place for years and cover all of us  should not be written as a reaction to a minority of irresponsible attorneys who fail to educate themselves before acting.   There are already outdated rules on the books that hinder the use of technology to deliver legal services online, for example, the bona fide office rule.  

There are some great books written by and for attorneys on how to deal with social media that have recently come out.  Niki Black and Carolyn Elefant’s book published by the ABA LPM is one example that comes to mind.  I just wish this article had ended by citing one of those books, recommending a resource for attorneys or at least reminding the reader that while there are these bad seeds out there, there are many other attorneys using the Internet ethically and responsibly to serve the public.