ABA Ethics Panel Looking at Social Media?
Last summer, the ABA kicked off its “Commission on Ethics 20/20″ to review ethics rules across the country in the context of technological change. Given its role in promulgating model rules for state bars, the work of the commission can have far-ranging implications. It could even hold out hope of ushering in a paradigm shift that would benefit both attorneys and consumers via streamlined, easy-to-understand licensing, practice and advertising rules. Unfortunately, early indications aren’t promising.
The starting point is the Commission’s Preliminary Issues Outline, a curious document, covering areas both broad and specific, and quite obviously representing the pet issues of those involved with the Commission. Given the composition of the Commission (lots of academics, established lawyers and little-to-no active users of social media or advanced technology), this points to a process that is unlikely to move the profession toward greater transparency and consumer responsiveness. Here’s a sampling of some of the issues being pursued by the Commission:
The Pros and Cons of State-Based National Licensure – From the call of this question and early comments, look for a heavy focus on the “Cons.” That’s a shame, because there are a lot of ways consumers and lawyers could benefit from more “borderless” practices.
Whether the Model Rules Unnecessarily Impede a Lawyer or Law Firm’s Ability to Employ New Technologies in Representing Clients - Expect to see lots of handwringing over cloud computing, social media and the like. We saw it with email, cell phones and IM, and it gets repeated with every new technological iteration. Sigh.
Virtual Law Firms – It would be great to have a real discussion about virtual law offices and how multi-jurisdictional practice rules could accommodate them. However, the Commission is focused on client protection, which current rules can easily address.
Social Media Use By Lawyers – The Commission has framed this issue as whether existing ethics rules adequately address social media use by lawyers. As I pointed out in Avvo’s Comments to the Commission, the problem isn’t that the existing rules need to be expanded to cover social media. The existing rules are, all too often, too expansive and inflexible, and many state bars have shown that they love nothing more than to over-regulate attorney communications. Why not just scale back – as at least one bar (DC) has done – and simply draw the line at any advertising that is false or misleading? Billboards or tweets; the medium doesn’t matter as long as the message is transparent and honest.
Unbundling & Opensourcing Legal Work – Another area where the Commission has immediately focused on “client protection” rather than the ways the ABA might embrace these opportunities to make legal services more affordable and widely available. Sure, clients need to be protected from shady practices, but the history of bar regulation has shown that it is a very quick step from “client protection” to “preserving the monopoly of lawyers over delivery of all legal services.”
Online Access to Attorney Disciplinary Records – This should be a very simple discussion, especially given the sorry state of public access to attorney disciplinary records. If I were a doctor, I’d be outraged that all of my licensing information was so openly available (as it is, online, in every state) while lawyers escape this scrutiny due to the historical oddities of attorney licensing. While states like California, Florida, Texas and Washington do a good job of making this information available, others – like Alabama, New Mexico, Oklahoma and Utah – are shamefully bad. Does the Commission call out this lack of transparency and ask for ideas on how to solve it as quickly as humanly possible? Uh, no – they lead with the hand-wringing, wondering whether the online disclosure of public disciplinary records would lead to litigation against the recordkeepers. No, seriously.
Does Existing Law Protect the Public When Accessing Lawyer Rating Sites? – Finally, my favorite, obviously kicked in by someone who doesn’t like attorney ratings. The answer to this inane question is, of course, yes – existing law is more than adequate to “protect the public” as they cut through the opacity of the legal industry. What existing law won’t do is protect lawyers from being rated and scrutinized as “word of mouth” moves online via client reviews and ratings like Avvo’s.
Athough the Commission has raised a few non-issues, many of the items on its plate are things that should be explored. It’s just that they need to be viewed with an eye toward enhancing consumer access to justice. Whether that means more information about attorneys or removing the shackles from innovation in legal practice, there’s a lot of progress that could be made. While we remain likely to see little more than a process of worrying and regulatory fist-pounding, there remains opportunity to remind the Commission of how its mandate could lead to meaningful change. The Commission is still taking comments – make your voice heard.
