On October 14, 2010, the ABA Ethics 2020 Commission held a public hearing on two proposed whitepapers, one dealing with cloud computing, the other with lawyers’ use of internet tools, primarily social media, for marketing. [update] I wish to emphasize that the Whitepapers themselves reflect a substantial amount of research and fairly identify or evaluate many possible options. [end update]. But for whatever reason – be it lack of notice or lack of interest (I suspect a little of both), only five witnesses signed up to testify at the hearing: only one law firm, a representative from the Lawyers Marketing Assocation and three vendor representatives , at least two of which are active sponsors of ABA activities. For the record, while I acknowledge that many lawyer marketers and vendors can make valuable contributions to these hearings, ultimately, it is lawyers – and our potential clients – who will bear the brunt of the outcome. Moreover, the fact that a hearing by an ethics commission, of all things, is dominated by vendors who are paid sponsors of the ABA conveys an appearance of impropriety that quite frankly, troubles me. Yet, when I expressed my concerns on the Ethics 2020 Listserve (which supposedly, is intended to generate discussion), my comments went ignored.
So rather than complain, I’m taking matters into my own hands. On November 4, 2010, I am conducting a briefing and hearing on the ABA Ethics 2020 Whitepapers via tele-seminar. The issues that are the subject of the white paper will profoundly impact the way that solo and small firms do business. True, the Whitepapers do not take a position. However, the Whitepaper related to lawyer use of web and social media discusses policy options that would represent an unprecedented regulation of lawyers’ personal interaction with our colleagues, chill legitimate efforts to educate clients and the public and eviscerate our First Amendment rights. The policies contemplated for cloud regulation are even worse; some of the options discussed would effectively give rise to bar micro-management of lawyers’ technology choices. Worst of all, if adopted, many of these policies would squelch the precious opportunity that technology has provided us to improve the quality of legal services that we provide our clients and expand meaningful access to justice.
I realize that solo and small firm lawyers are busy, but our livelihood is on the line. By organizing this teleseminar, I hope to make it as easy as possible for lawyers to get up to speed on the issues raised in these Whitepapers and to offer comments for submission to the ABA Ethics 2020 Committee. You’re probably wondering what qualifies me to conduct a briefing on these issues. Well, as a practicing lawyer who takes my professional obligations seriously, I monitor ethics issues closely. I’ve published two law review articles on ethics issues, 128 blog posts on ethics and along with my co-author, Nicole Black, I researched and wrote the chapter on legal ethics in the ABA book, Social Media for Lawyers. But my most important qualification is that I’m a practicing lawyer who actually uses this stuff in a manner that I like to think is both ethical, responsible and to the benefit of my clients. What scares me to death is that many of those who will be making recommendations on proposed rules to govern practicing lawyers have never set up a Facebook page, never participated on Twitter, never run a practice and used tools like DropBox or BaseCamp or RocketMatter or Clio to keep in touch with clients without added administrative costs, never endorsed a colleague on Linked-In or Avvo.
The format of the proposed teleconference is as follows. I’ll provide a 30 minute briefing on the two whitepapers. After that, the call will be opened up to comments from solo and small firm lawyers (first priority), followed by input from in-house counsel, ethics academics, law practice management advisers and anyone else interested. Testimony will be limited to 5 minutes. The call will be open to members of the ABA Ethics 2020 Commission and also transcribed with comments submitted to the Commission for review. So if you don’t feel like drafting written comments, here’s your chance to present your position nonetheless. Slots for comments are limited, and if there’s overflow, priority will be given to solo and small firm lawyers, with consideration of diversity of viewpoints. To participate in the teleconference as a listener or as a witness, you’ll need to register on the form below to get the access codes. Please join us, and let your voice be heard.