Update, 9/23/2010 : Please review the comments from one of the Ethics 2020 reporters. Seems that I was not sufficiently precise in describing the Commission’s activities to date, so let me clarify. The Commission has, at this point, released issues papers, nothing more. It hasn’t proposed rules (as I implied) or taken a position on any topic. Please see Professor Perelman’s comments below.
Sorry readers for two heavy posts in a row. Yesterday, I lamented that we’re not the main event, but now there’s a chance at redemption. The ABA’s Commission on Ethics 2020 today released two issues papers, one that addresses confidentiality issues related to cloud computing and the other, embedded below, on lawyers’ use of Internet tools, including blogs and social media, for client interaction and marketing.
I’m swamped with real law right now, but I’ve done a quick and dirty mark-up of the paper on social media and lawyers (you’ll see the yellow flags with my comments if you scroll through) – honestly, some of the concerns are laughable and suggest, in the paraphrased words of Ricky Ricardo that the Committee lawyers got some [online] engagin’ to do. For example – did you realize the horrors that might erupt from mixing personal and professional on Facebook? (does that mean that I can’t circulate my business card to a bunch of PTA moms or chat with a bunch of college friends about my law practice?) Or that blogs that discuss substantive issues might appropriately be classified as advertising merely because they’re written by lawyers? (BTW, Scott Greenfield‘s seminal [I know he loves that word!] case, Bluestone v. Stern gets a shout out from the Commission on p. 12).
I also just noticed that the ABA is seeking comments on whether ghostwritten blogs can be deceptive if they suggest an expertise that a lawyer doesn’t have. What do you mean – like the ability to write? (by the way, outing the ghost blogs is pretty easy – if a blog seems very smooth and banal just run a google search on a bunch of text and if it comes up on 5 different blogs, you know you’ve nabbed a ghostwritten one).
At first blush, the cloud computing rule is even scarier; the committee compares cloud storage to outsourcing and suggests that lawyers may have the same oversight over cloud technologies as we do over virtual lawyers and contract attorneys. Really? I guess I should also be checking my bank to see how it oversees my trust accounts and consult the phone company about its practices of keeping phone lines secure. Technically speaking, anything I don’t do inhouse myself is outsourcing, yet lawyers aren’t expected to oversee it all. So why is cloud storage any different? But I’ll save that mark up for another post.
Listen, this is a critical time for solos and small firms to step forward and make our voices heard. I’m already plotting on how we can organize and how to raise some money to support this effort. We cannot allow vendors and marketers to dominate this rulemaking; we need to let the Commission hear from real lawyers in real practice. Please – weigh in on these rules either on your own or through the MyShingle effort (I’ve reached out to GP Solo but heard nothing yet). This is our chance to set precedent.