November 11th, 2010 by Josh King, VP of Business Development and General Counsel

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As Conrad mentioned the other day, the ABA is cranking up the process of looking into lawyers’ use of social media tools. The ABA Ethics 20/20 Commission (in front of which I had the pleasure of testifying last month, on another topic they are investigating – lawyer ratings) has issued a 15-page-long “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools.”

Comments to the paper are due on December 14, and they will no doubt be voluminous. One concern of many lawyers is that this process will lead to even more overreaching regulation by the states – sowing confusion and making it harder for lawyers to communicate with and offer innovative services to clients.

I was struck, then, by a release this week from the ABA’s counterpart in the world of medicine. The American Medical Association this week issued its policy on this topic, titled “Professionalism in the Use of Social Media.” Those reading it will be struck first by its brevity; it clocks in at all of 358 words (the commentary alone to ABA Model Rule 7.1 – which simply prohibits false and misleading attorney ads – is almost that long):

The Internet has created the ability for medical students and physicians to communicate and share information quickly and to reach millions of people easily. Participating in social networking and other similar Internet opportunities can support physicians’ personal expression, enable individual physicians to have a professional presence online, foster collegiality and camaraderie within the profession, provide opportunity to widely disseminate public health messages and other health communication. Social networks, blogs, and other forms of communication online also create new challenges to the patient-physician relationship. Physicians should weigh a number of considerations when maintaining a presence online:

(a) Physicians should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online, and must refrain from posting identifiable patient information online.

(b) When using the Internet for social networking, physicians should use privacy settings to safeguard personal information and content to the extent possible, but should realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently. Thus, physicians should routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and, to the extent possible, content posted about them by others, is accurate and appropriate.

(c) If they interact with patients on the Internet, physicians must maintain appropriate boundaries of the patient-physician relationship in accordance with professional ethical guidelines just, as they would in any other context.

(d) To maintain appropriate professional boundaries physicians should consider separating personal and professional content online.

(e) When physicians see content posted by colleagues that appears unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions. If the behavior significantly violates professional norms and the individual does not take appropriate action to resolve the situation, the physician should report the matter to appropriate authorities.

(f) Physicians must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, may have consequences for their medical careers (particularly for physicians-in-training and medical students), and can undermine public trust in the medical profession.

Ponder, for a moment, the reflection and simplicity here. There is a tacit acknowledgement that physicians are professionals – professionals who may need some guidance in this area, but certainly not in the form of having every communication scrutinized for compliance with the rigid corners of some picyune rule. Are lawyers really so different than doctors that we need detailed, step-by-step rules for communicating in public? Is it not enough that professionals be guided by basic, high-level principles?

The AMA has focused on the positive ways that social media enhances communication between physicians and patients, with a gentle reminder – befitting professionals – to be aware of potential risks to the integrity of the physician patient relationship. The ABA could do the same, and offer clear reminders about the big-picture issues with social media instead of mucking about in the weeds.

Sadly, all indications are that lawyers will end up with something a good deal more Byzantine than the AMA’s thoughtful policy.

This entry was posted on Thursday, November 11th, 2010 at 12:31 pm by Josh King, VP of Business Development and General Counsel and is filed under Josh King Posts. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.