Using Common Sense On-Line

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.

Honor Among Bloggers

A Soap Box.
Image by MonsieurLui via Flickr

Yesterday, I read something that riled me up. A tech blog post with an inflammatory title designed to ensure click-through and “opinionated” content marginally “based” on “facts” with an equally inflammatory bent. On a well-respected and highly viewed tech blog.  The post was dressed up like a “tech” review, but in reality served as a “hot poker” to get readers to hit it and come back repeatedly to check the comments for more outrageousness. The blog author kept the craziness going by answering challenges in the comments with additional “facts” he failed to mention in the original post.

This post reminded me of a similar post that I read last fall – another in which the writing was clearly designed to encourage readers to enter the fray and even post comments in outrage because of the over-the-top nature of the post and its equally poor writing.

I am not going to link to the post here, because I am not interested in encouraging more “hits” on it and in rewarding the writer for a job poorly done. One reason that bloggers engage in such tactics is to inflate hits and statistics, measures which affect revenues for a blog that relies on hits and clicks to increase its income.

I surely don’t begrudge anyone their income opportunities, as long as they are not hurting anyone in the process. Are these manipulaters hurting anyone here? Umm, yes!  Whether they choose to be or not, bloggers populate the new wave of journalism. The advent of blogging has dramatically changed the way in which people receive their “news.” Blogging has changed the face of traditional news outlets. More and more readers have shifted reliance on traditional news outlets to bloggers for cutting-edge information, particularly on cutting-edge topics.When readers believe they are receiving quality and are instead fed drivel, it breaches reasonable expectations of validity, bringing our profession down in the process.

Journalists adhere to a code of ethics, through the Society of Professional Journalists. I thought I might quote some of it here:

Seek Truth and Report It
Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.

*   *   *

— Make certain that headlines, news teases and promotional material, photos, video, audio, graphics, sound bites and quotations do not misrepresent. They should not oversimplify or highlight incidents out of context.

*   *   *

— Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
— Distinguish news from advertising and shun hybrids that blur the lines between the two.

There are reasons for ethical codes. When people perceive that a practice has the power to harm, they rightly craft a set of “rules” to ensure protection of those who could be subject to the foul play that misuse of power can wreak. Lawyers have a code of ethics. Journalists have a code of ethics. Cyber Journalist has proposed a blogger code of ethics as well. The admonitions make sense. Here is the proposed Code in its entireity:

Be Honest and Fair
Bloggers should be honest and fair in gathering, reporting and interpreting information.
Bloggers should:
• Never plagiarize.
• Identify and link to sources whenever feasible. The public is entitled to as much information as possible on sources’ reliability.
• Make certain that Weblog entries, quotations, headlines, photos and all other content do not misrepresent. They should not oversimplify or highlight incidents out of context.
• Never distort the content of photos without disclosing what has been changed. Image enhancement is only acceptable for for technical clarity. Label montages and photo illustrations.
• Never publish information they know is inaccurate — and if publishing questionable information, make it clear it’s in doubt.
• Distinguish between advocacy, commentary and factual information. Even advocacy writing and commentary should not misrepresent fact or context.
• Distinguish factual information and commentary from advertising and shun hybrids that blur the lines between the two.

Minimize Harm
Ethical bloggers treat sources and subjects as human beings deserving of respect.
Bloggers should:
• Show compassion for those who may be affected adversely by Weblog content. Use special sensitivity when dealing with children and inexperienced sources or subjects.
• Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.
• Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of information is not a license for arrogance.
• Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.
• Show good taste. Avoid pandering to lurid curiosity.
Be cautious about identifying juvenile suspects, victims of sex crimes and criminal suspects before the formal filing of charges.

Legal bloggers may already be sensitive to many of these concerns. Their reasons for blogging differ from those bloggers who make their money from hits and click-throughs. Legal bloggers undertake blogging to showcase their expertise, make connections and earn trust and respect from peers and clients. I would imagine  (and hope) that the incidence of “sensational” headlines and outrageous assertions would be either zero or none on law blogs. I only wish that such irresponsible conduct could be limited to blogs that pander to the National Enquirer crowd – far away from blogs that profess to provide valid news and reviews on tech matters or other professional subjects.

Reserve wild assertions and crazy opinions for the cocktail party or Twitter, Friendfeed or any of the social media outlets where they clearly will be viewed as opinion. Remember your footprint when you blog and, hopefully, your content will add to the blogosphere, rather than detract from it.

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