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Ethics and Lawyers Online

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This week's Daily Record column is entitled "Ethics and Lawyers Online."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Ethics and Lawyers Online

In 2009, the American Bar Association established the Commission on Ethics 20/20 (online at www.abanet.org/ethics2020). The stated purpose of the Commission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

The commission issued separate letters last week calling for comments on two different issues — lawyers’ use of Internet-based client development tools, including social media and blogs (www.scribd.com/doc/37901566/ABASocialmedia- comments), and client confidentiality and lawyers’ use of technology, with a focus on cloud computing tech- nologies (www.legalethicsforum.com/files/letterhead- client-confidentiality-issues-paper-final-9.20.10- 1.pdf).)

Given that I recently co-authored a book published by the ABA on the topic of social media for lawyers, and am in the process of writing a book on cloud com- puting for lawyers, (to be published by the ABA in early 2011) the letters understandably piqued my interest. I wanted to address the social media issues this week, and plan to address the cloud computing issues in next week’s column.

First and foremost, I take issue with the way in which the social media question is framed. Specifically, the use of the words “Internet-based client development tools” in the heading of the letter implies that, by virtue of having a law degree, client development is always the primary underlying motivation anytime lawyers interact online. This is not a presumption when attorneys interact with others offline. Yet, because a novel and different medium is now being used to interact, client development issues are apparently triggered by default whenever attorneys interact online.

Second, when discussing social media use by lawyers, the commission explains that “[b]ecause lawyers frequently use the websites and services for both personal and professional reasons, the legal ethics issues in this context are more complicated than they might have been for more traditional client development tools.”

Really? So, is the commission truly claiming (with a straight face) that prior to the advent of social media, lawyers never interacted with others offline for both personal and professional reasons? That lawyers engage in community activities with only a personal or professional motivation and never the twain shall meet?

In that case, does the the commission believe that golf outings with other attorneys, judges, clients or potential clients are undertaken solely for personal enjoyment, with no hope of advancing professional goals?

Likewise, volunteering one’s time as a member of a not-for-profit board is always done solely out of the goodness of a lawyer’s heart and for personal enjoyment (since the board meetings are usually oh-so-exciting). Similarly, participation in a local Rotary Club also is done solely for personal reasons, with nary a thought of professional advancement ever entering the lawyer’s mind.

Of course that’s not the case. If your career involves providing services to the public, anytime you interact with others in their community, you should have both professional and personal goals in mind. If that’s not the case, then you likely will be out of business in no time flat.

That’s not to say, of course, that every time an attorney interacts with another person — online or off — he or she does so with professional goals in mind. It simply depends on the unique nature of the specific interaction at issue. Some are personal, some are professional. Others are a combination of the two.

So, when the Commission asks “[u]nder what circumstances should the Model Rules of Professional Conduct govern a lawyer’s participation in ... [blogs or professional and social networking sites] ... given that such activities often have both a personal and advertising purpose?” it seems to me that they can’t see the forest for the trees.

The rules as they exist are perfectly sufficient to govern such conduct, and no additional oversight or interference is needed. Online interaction simply is an extension of offline interaction. It does not, by virtue of its unique format, merit a separate category requiring additional, more stringent oversight. Rather, common sense application of existing rules is all that is required. To suggest otherwise unnecessarily complicates matters and is indicative of a traditional mindset unwilling to join the rest of the world in the 21st century.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.
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Large firms: Take next social media steps

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This week's Daily Record column is entitled "Large firms: Take next social media steps."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Large firms: Take next social media steps

A few weeks ago I discussed the ways in which large law firms can use social media to create an effective firm-wide online presence by establishing firm profiles on the top three most traveled social media sites: LinkedIn, Facebook and Twitter.

Once a large firm follows those recommendations and creates an effective enterprise-level presence online, the next step is to allow individual members of the law firm to interact on mainstream social media sites on a more personal level.

Of course, handing over the reins to individual firm members is an alarming proposition for many firms. There is a sense of loss of control of the message and fear of unforeseen conflicts and other public relations disasters.

Firms need to conquer their reluctance to allow individual members to engage on social media sites on behalf of the firm. Such personal interaction is the key to an effective online presence since people would rather hire other people to handle their legal matters — not large, impersonal, faceless institutions.

One way for a firm to test the social media waters is to choose a handful of select lawyers, such as younger associates and a few tech-savvy partners, to interact on social networking sites on behalf of the firm using their personal social networking personas. One way to go about this is to form a committee that includes the lawyers the firm has chosen, along with a few other partners, whose function will be to set ground rules for interaction and monitor the online progress of those interacting online on behalf of the firm.

The attorneys engaging in social media on the firm’s behalf should establish a basic online presence by ensuring that they’ve claimed and populated their attorney profiles on the main lawyer directory sites, such as Avvo (www.avvo.com) and Justia (http://lawyers.justia.com/). Creating the profiles is free, and simple, and the sites are well traveled by potential clients seeking attorneys.

Each lawyer also should create basic profiles on LinkedIn and Facebook. LinkedIn is important because, even if it’s not used for online interaction purposes, it’s an easily discoverable online resume at the leading professional networking site.

A Facebook presence is similarly important. Facebook makes it easy for lawyers to connect with everyone they’ve ever known. Even if no other interaction takes place on Facebook, an online presence there allows lawyers to be found by, and stay on the radar of, the people that they’ve known from every stage of their lives.

After those basic steps are taken, each lawyer should determine where they intend to focus their online efforts. That decision will be based on their practice areas, target clients, geographic location and comfort levels with the different social media platforms. The decision-making process is not necessarily a simple one, and a more detailed examination of the factors to consider unfortunately, is outside of the scope of this column (but is covered more fully in the book that I co-author with Carolyn Elefant, “Social Media for Lawyers: the Next Frontier”).

The nature of each attorney’s interaction will be governed, in part, by the formality of the specific platform. As a general rule, LinkedIn is the most formal, with Facebook and Twitter being more informal.

The following social media interaction formula provides a general rule of thumb regarding the content of information shared across social networks:

• Approximately 50 percent of interaction should consist of the dissemination of content that is in your areas of practice and would be of interest to your followers, including links to blog posts, news articles and any other substantive online guides.
• 30 percent of interactions should consist of conversation with others, including commenting on the blog posts of others and responding to other people’s posts on various social media sites.
• Blatant self-promotion is acceptable approximately 10 percent of the time, including links to content created by the lawyer or someone in his or her firm, news stories about the lawyer or the firm and updates about the lawyer’s practice.
• Finally, 10 percent of interaction should include posts about the lawyer’s personal interests, to the extent that the formality of the specific social media site permits it.

Things to share include details about hobbies, such as mountain biking, wine or running, updates on favorite sports teams or comments regarding current events, movies or books. Sharing this type of information, to the extent possible, is imperative. It makes the lawyer appear more personable, approachable and memorable.

So give the chosen lawyers some space and let them engage online and hold monthly meetings to monitor their interaction and address any problems that may arise. Then, take stock of their progress. You may find that their online engagement has been far less problematic, and much more beneficial, than you ever envisioned.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.


The Internet and the Courtroom

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This week's Daily Record column is entitled "The Internet and the Courtroom."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.

*****

The Internet and the Courtroom

The Internet is a force to be reckoned with. It has altered our collective reality in ways never before seen, leveling the playing field and providing anyone with a computer and online access instantaneous access to information
of all types and kinds. And, with the increasing availability of smart
phones, tablet computers, and personal MiFi systems (which provide users with their own portable wifi network), the Internet can be accessed virtually anywhere, anytime.

The ubiquity, accessibility and reach of the Internet, of course, present a problem for the courts, as jurors, lawyers and just about anyone else sitting in a courtroom now have the ability to access and disseminate information about the cases being litigated in a courtroom. So, it’s no surprise that stories of juror misconduct   
relating to improper Internet access are becoming increasingly commonplace.

For example, in a recent Florida case, Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010), a manslaughter conviction was overturned due to juror misconduct where, during jury deliberations, the juror used his iPhone to search online for the definition of “prudence,” a key term used in the jury instructions.

The court explained that the juror’s actions were improper, thus requiring reversal of the conviction: “In this case, the trial court found the utilization of the smart phone to access Encarta to lo o k up the definition of ‘prudent’ was juror misconduct. Using Encarta to access a dictionary is, of course, no different than utilizing a bound dictionary. A dictionary is not one of the materials permitted to be taken into the jury room... The concept of ‘prudence’ is one that could be key to the jury’s deliberations. At the very least, we cannot say that there is no reasonable possibility that the juror’s misconduct, by utilizing the smart phone to retrieve the definition of ‘prudence,’ did not affect the verdict in this case.”

In another case, a Michigan juror was removed from a jury last month after she posted on Facebook her belief that the defendant, who was charged with resisting arrest, was guilty. Her determination of guilt was posted online before the trial had concluded and was discovered by the defense attorney’s son, while searching for the names of jurors during the trial in the evening hours, after court had convened for the day.

In another recent case, Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. Aug. 30, 2010), at issue was whether attorneys may access the Internet during jury selection to obtain information about jurors on the panel. The appellate court concluded that accessing the Internet during jury selection was permissible:
“(W)e...conclude that the judge acted unreasonably in preventing use of the internet... There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of ‘fairness’ or maintaining ‘a level playing field.’ The ‘playing field’ was, in fact, already ‘level’ because internet access was open to both counsel, even if only one of them chose to utilize it.”

It’s quite clear from these cases that the Internet has invaded the courtroom. For now, courts will simply have to grapple with these issues on a case-by-case basis. Eventually, however, clear standards and precedent will be established that govern how and when the Internet can be accessed and used during trials.
This process will take time; change usually does. But, change will occur, Internet access during trials will be commonplace, and our court system will be better because of it.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.