There has been much controversy surrounding the American Bar Association’s decision to evaluate and revise its position on social media for lawyers. The ABA Commission on Ethics 20/20 has solicited guidance from dozens of lawyers across the country and has said repeatedly that any changes are not likely to be earth shattering. But views on both sides of this issue are strong and while some lawyers have been outspoken in their defense of social media, others have said that too much online interaction could cross important ethical borders. This week, the ABA released its initial proposal on the use of technology for client development, and for all intents and purposes, we’re looking at business as usual for lawyers and judges.
“The Commission concluded that no new restrictions are necessary in this area,” the ABA Ethics Commission writes on the report’s cover letter. But, it added, “lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.” The report went on to suggest revisions to its policy regarding advertising, and contact with prospective clients.
The report seems to confirm what many observers initially suspected: that alarm over the ABA’s review of its technology policy was largely blown out of proportion. Robert Ambrogi, who called the draft a “sensible balance,” said the “proposed rules recognize that lawyers should be able to communicate and engage with others online without necessarily creating a prospective attorney-client relationship. Rather, that prospective would arise only when the lawyer creates a ‘reasonable expectation’ that he or she is interested in forming such a relationship.”
I think this hits the nail on the head. If a lawyer is inclined to act unethically, then he or she is going to do so, without or without the help of Facebook and Twitter. Sure, technology provides new platforms that lawyers can use to slip up, but social media tools are not inherently unethical until individual lawyers act unethically. At the end of the day, lawyers have the right to exercise free speech on and off line, and should be held accountable for whatever mistakes they make whether it’s in a coffee shop, or sitting on Facebook in their living room.
So as long as the ABA does not forbid the use of social media for lawyers, it seems likely that their guidelines will simply provide some more clarity while essentially allowing lawyers to continue using social media as they do already.
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