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Watson wrote about a cautionary post about the perils of social media.
Use social networking sites to better serve your clients and help create new business. But do not lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically.
He also gave a long list of horribles, and short list of benefits. This made Kevin start to sweat profusely, and prompted this response.
I don’t know whether Watson uses Twitter, Facebook, or a blog to build and nurture relationships or enhance his reputation as a thought leader on malpractice insurance statewide or nationwide. He may not fully appreciate how social media works nor the benefits it brings to the public an lawyers.I understand that he is just doing his job as a legal malpractice carrier and that he is citing other authorities for much of what he writes. But my gut tells me articles like this on the perils of social media do far more harm than good to lawyers and the public we serve.
Things get uglier in the comments, where Watson argues that he's saying nothing more than be cautious, and Kevin, in an interesting rejoinder, questions whether anybody has ever been disciplined for something they did on social media.
This is a dangerous question in the abstract, but because there have certainly been disciplinary cases involving social media (even if Kevin doesn't know about them), but more importantly, the sine qua non of ethics isn't whether someone was nailed for a violation of a disciplinary rule, and the suggestion that anything that doesn't land you in lawyer-jail is cool is, frankly, dangerous and foolish. Some of us prefer to be ethical. Some of us prefer to do whatever serves our self-interest, provided we don't get caught. What's your preference?
While the dispute didn't strike me as too, well, serious, it apparently compelled Kevin to write another post questioning whether the use of all social media is subject to ethics rules. This is where an otherwise mundane disagreement becomes interesting.
The simple answer is that everything a lawyer does is subject to ethics rules. Being a lawyer is a 24/7 gig, and no one should be confused about the obligation to be ethical after hours. But that's not really the issue Kevin's raising. Rather, the issue is whether all use of social media is advertising, and therefore subject to the rules for attorney advertising.
To answer this question, it helps to know the definition of commercial speech, which is subject to intermediate rather than strict scrutiny, and can therefore be regulated provided the government has pretty good reason and it's regulations don't go too far over the edge.
Kevin kicks the question over to my buddy Josh King, who holds the curiously divergent positions of general counsel of Avvo and VP of business development. In a video interview with Colin O'Keefe (Kevin's son and a great kid) done at Avvocating 2012 (see my keynote address that went undelivered), Josh defines commercial speech (and thus speech subject to regulation as attorney advertising) as speech which "proposed a commercial transaction."
Well, yeah. That's accurate as far as one definition is concerned, but it's not the end of the story, both because defining a word by using the word in the definition never works, and more importantly, that's not the end of the definition. Caselaw also defines commercial speech as that which informs the public of the quality, nature and availability of good and services. That means much of the writing by lawyers in social media is certainly commercial speech. All of it is not.
This is where Kevin gets himself into trouble, with an unfortunate attempt at analogy:
Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?
Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers.
Is Riordan’s activity on Twitter and Facebook advertising? How about her Fashion Law Blog?
For some reason, I suspect Staci's making partner had more to do with her abilities as a lawyer than her blog. Why Kevin would choose to diminish Staci's substantial professional accomplishments in order to promote her blogginess, wrapped up in such absurdly pretentious language that it makes me wince, is that it serves his interest, the promotion of blogging. Staci deserves better.
But the problem is that if Staci's blog was directed to the purposes Kevin attributes, it would likely be commercial speech rather than substantive speech. If her purpose is to grow business rather than illuminate issues in the law, then it's about the quality and nature of services for sale. Sure, Kevin tosses in at the end "better lawyer," but nothing else he's written suggests any connection whatsoever. It plays better if you try not to think too hard.
So what's the point? It's hard to imagine how anyone without a direct financial interest would have a problem with Tom Watson's admonitions to be cautious and ethical in social media. We should be ethical in everything we do, and this shouldn't be controversial. Similarly, Josh's argument, that we ought to push the limits of ethics to test how far we can take speech to reap financial rewards is troubling. It seems like the Gordon Gecko version of ethics in the age of greed.
As for Kevin's point, perhaps he's right that there are financial benefits to engaging in social media, though I've never found it to be true, or that the trade-offs come close to making it worth your time if your purpose is to develop business. There may be that one in a thousand lawyer who's gotten enough business off the internet to make it worthwhile, and I don't begrudge her if that's the case.
Yet, denying that social media doesn't hold the potential, if not the likelihood, of being a vast cesspool of unethical conduct by lawyers is fundamentally wrong. It is not a truth-free zone. It is not absolved from ethical considerations because it's web 2.0. It is not an opportunity to put on those pink hotpants and strut down the boulevard.
You want to use social media to generate business? Heed Tom Watson.
And now we return to our regularly scheduled programming.