November 8th, 2010 by Gwynne Monahan
Yesterday, Carolyn Elefant of MyShingle hosted a teleseminar to review and discuss two white papers published by the ABA Ethics 20/20 Commission. The first white paper, “Issue Paper Concerning Lawyers’ Use of Internet Based Client Development” (PDF), refers to tools such as social media and pay-per-click campaigns. The second paper, “Client Confidentiality & Lawyers’ Use of Technology” (PDF) refers to cloud-computing tools.
She provided a nice summary of the Commission, and the two white papers. She also raised some concerns, such as:
- Clients aren’t mentioned in either white paper. She noted that clients increasingly want access to information about their cases, something that cloud-computing applications offer, and that there currently is no documented accounts of clients who have been mislead online. She also pointed out that the white papers were more lawyer-driven, more theoretical, and without data on client demands and clients having been misled, we are not getting a complete picture.
- Those making, or suggesting, rules are not playing the game. They are not blogging, tweeting or actively engaging in these tools and thus may not have a good understanding of their uses. She points out that, by using the tools, things become apparent that otherwise go unnoticed.
One of the more interesting observations she made is that some of the proposals will micro-manage lawyers. She stated that today, we live in a fast-paced world, and since lawyers use discretion each day to advise clients, they should be able to use that same discretion to advise themselves.
Some other take-aways:
- Uniform standards are needed for websites and social media use. Patchwork of rules creates confusion for lawyers as well as clients and consumers. Also important to note that technology removes barriers. A website for a firm in Delaware can be viewed by a consumer in Nevada.
- Have best practices instead of amending rules. Best practices will encourage competition.
- Cloud-computing as outsourcing sets dangerous precedent. Imposes obligations beyond what is necessary to maintain client confidentiality.
- Have Best Practice for lawyers who conduct more due diligence and/or are more tech savvy, and a vendor certification program for lawyers who want technology tools to be OK’d right out of the box.
Those are just some brief points, and we invite you to hear the teleseminar yourself. Carolyn has posted a summary, a link to the recording as well as her PowerPoint slides online.
You can also submit comments related to these issues to the ABA:
Senior Research Paralegal, Commission on Ethics 20/20
ABA Center for Professional Responsibility
321 North Clark Street
Chicago, IL 60654-7598
Comments must be submitted by December 15, 2010.