It has become apparent to me that this week is going to be dubbed the “Mind Your P’s & Q’s” week (punctuation and quotations, perhaps?) on the Studio. My last post was about challenging new methods of securing client referrals on-line and taking care to mind the reach of our archaic ethical rules. This post discusses a more personal subject: knowing when to employ the TMI filter or risk running afoul of the ethical rules.
It seems strange to me that professionals of any sort, and lawyers in particular, would not grasp what is appropriate and what is inappropriate to put down, in writing, in public, regarding themselves, their clients, or any other sensitive matters, for that matter. Are lawyers driven to communicate against their better judgment because of the medium? Or is it just another manifestation for the generally-accepted proposition that lawyers love to hear themselves talk and an erroneous belief that what they might consider to be private and protected might not actually be so?
Please let me clarify: there is nothing at all wrong with loving to hear oneself talk, particularly if the talk is valuable and if it contributes to the greater community of peers and potential clients. In fact, that is the beauty of on-line interconnectedness: we can reach and share rich content with a community of much larger scope than generally available via real world interactions, unless you are one of those guys wearing a sign near Times Square.
However, if you are a professional seeking to enhance your practice through on-line endeavors, you should keep in mind the real world prohibitions against and implications of sharing information against your interest or the interests of your client. And then multiply those prohibitions times, oh, about, 3 – 5 decimal places.
The inspiration for this post comes from an ABA Journal blurb about blogging lawyers called to task for legal and ethical problems. I actually found myself alternating between scratching my head and chuckling about the problems lawyers have faced. There are lawsuits against lawyers who thought they were anonymously charging other lawyers with engaging in conspiracy, and firings and ethical probes of criminal lawyers who included “thinly veiled” references to clients and sharp criticisms of judges in blog posts. Lawyers who write contemporaneous blog posts about their experiences on a jury and lawyers who seek continuances for socially acceptable reasons, when their Facebook page shows otherwise (and the presiding judge is a FB friend!!!).
Even judges can find themselves in hot water – remember Chief Judge Alex Kozinsky from the 9th Circuit Court of Appeals who found himself explaining some off-color humor residing on a family web server intended to be private (but apparently, not so much)?
The New York Times article cited in the ABA Journal article highlights these examples and provides interesting food for thought. Lawyers are under the same strict guidelines regarding professional conduct and client confidences on-line as they are in real life. These ethical rules collide with the “free-wheeling” environment of the Internet. Legal ethics scholars suggest that conflicts between ethical rules and on-line behavior will only increase as more youngsters reared in the age of Facebook complete law school and enter the profession.
I am not so naiive to think that similar breaches of confidence and perfidious-ness (is it a word? ) don’t happen in the real world. They most certainly do. However, there are two extra-hazardous facts that come into play on-line: the utterer’s mistaken sense that only his or her intended listeners are noticing and hearing the message; and, easy searchability. While nothing in this life is truly permanent, written words indexed and searchable on-line certainly echo much longer than their verbal counterparts.
Social networking should be social. There is no question in my mind that a stronger connection is achieved on-line if you show a little personality, a little of your personal background , along with that sense of the lean, mean, legal machine, that you are, of course. But lawyers, please use common sense: personality and defamatory criticisms are not coextensive. And remember, if you tell your Facebook friend, the judge, that you need more time to prepare for trial because of a funeral in the family, don’t be updating your Facebook page with drunken party pictures on days of the wake and funeral.
This might be an example where ethical rules should not be changed to accomodate our Brave New World.
Update: I jumped back in over here to add another link to a law.com article about how tweeting can land you in hot water. It’s public, people. Very, very public.