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E-shaming (or e-lucidating): Just What the Doctor Prescribed for Ethics (updated)

by Carolyn Elefant on November 12, 2010 · 7 comments

in Ethics & Malpractice Issues, Ethics 20/20

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Over at the Avvo Blog, general counsel Josh King shares the American Medical Association‘s just released Policy on Professionalism in the Use of Social Media — all 358 words of it.   Josh applauds the AMA Policy for both its brevity and:

tacit acknowledgment that physicians are professionals – professionals who may need some guidance [on social media], but certainly not in the form of having every communication scrutinized for compliance with the rigid corners of some picayune rule

But Josh didn’t discuss the most interesting component of the AMA’s Social Media Policy: its explicit incorporation of peer policing, best described as e-shaming’s more refined, or at least more restrained, cousin. Specifically, the AMA Social Media Policy provides that:

When physicians see content posted by colleagues that appears unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions. If the behavior significantly violates professional norms and the individual does not take appropriate action to resolve the situation, the physician should report the matter to appropriate authorities.

The AMA’s policy statement, combined with the most recent spate of e-shaming posts by the ever vigilant Mark Bennett (criticizing Yodle for focusing on ROI and not the ethics of using canned content and lawyer-models on websites); Brian Tannebaum (going after deceptive social media gurus) and Eric Turkewitz (outing a seedy marketing scheme between funeralhomes.com and lawyers) got me thinking about this question:  Should the ABA, like the AMA, should formalize e-shaming as part of any new policies that result from the ongoing Ethics 20/20 Commission proceedings?

To be sure, lawyers currently have an obligation to report their colleague’s ethics transgressions to authorities. But traditionally, the obligation to report has rarely been triggered.  That’s because most good old-fashioned lawyer misconduct — like stealing from trust accounts or bribing judges — takes place in secrecy, and since lawyers’ colleagues frequently don’t know about it, there’s nothing to report.  By contrast, deceptive use of social media occurs right out in the open, thus increasing the likelihood that lawyers may be confronted far more frequently with actions that may compel a duty to report.

For many, however, e-shaming is preferable to regulation because it’s swifter and more direct. Scott Greenfield writes:

It’s been my hope that by scrutiny, e-shaming, applauding the good and calling out the bad, those of us with vested online interests could convince lawyers to make the choice to conduct themselves honestly and with dignity. I’ve been called a fool by the marketers, and shunned by lawyers who feared that their covert self-aggrandizement would be revealed. What a surprise. And so we have a bunch of guys who call each other by the pompous title “commissioner” who deign themselves qualified to make rules for a world they don’t know, and the clothiers of streetwalkers doing everything possible to outflank them.

I know that lots of lawyers, myself included, aren’t comfortable with taking on colleagues and their marketers head-on. Though I’m an aggressive advocate for my clients, unlike my bolder blogging colleagues, I simply don’t have it in me to publicize other lawyers’ ethical missteps, especially when they may not have known better. Sometimes I wish I did.

In any event, e-shaming isn’t the only antidote to deceptive practices in the blogosphere. For me, a preferable option to e-shaming is e-lucidation: bringing unprofessional or unethical use of social media to a colleague’s attention either through back channels or an informative blog post, explaining the problems and identifying corrective action or a better approach.  The AMA’s Policy Statement endorses a similar, progressive disciplinary approach; directing doctors to confront a colleague privately before filing a report with regulatory authorities.  Requiring lawyers to informally discuss ethics concerns with colleagues before going to regulatory bodies also reduces the likelihood that a lawyer might file a bar complaint against a colleague for deceptive practices to gain a competitive advantage. My guess is that the majority of advertising-related bar complaints against lawyers are filed by competitors). By the same token, while competitors can also abuse e-shaming to go after colleagues whom they don’t like, personally, I’d rather defend my conduct in the public forum than endure an ethics proceeding.

Whether it’s e-shaming or just e-lucidation, will a restored notion our collective responsibility under our existing ethics rules ward off onerous advertising restrictions?  That seems to be the point that Scott Greenfield and Brian Tannebaum have made, and surprisingly, it’s a view seemingly shared by ABA President Stephen Zack.  In a recent Lawyer-2-Lawyer interview with Bob Ambrogi, Zack (around minute 28:00 and after) noted that back in the day when legal communities were more close knit, lawyers and judges would get the word out about unethical lawyers.  Zack, and many others in the ABA fear that in an online market, lawyers are less accountable to each other – and for that reason, Zack believes that added regulation may be required.

I oppose new or additonal regulation, particularly in today’s fluid times where technology is moving too quickly to adopt a pin-point rule for every new case.  But I do think that it’s important to remind lawyers that our once dormant-through-inaction obligation to report continues to apply even in cyberspace.  At the same time, for all of the flaws of online marketing, I’d never trade today’s technology for a  return to the small-minded past that Zack evokes, where lawyers weren’t just ostracized for unethical practices but also for representing unpopular clients.  One of the great benefits of the Internet is that it’s given lawyers an opportunity to establish a reputation and find clients independently, so that those of us who aren’t team players or would rather practice law than sit on committees are no longer beholden to the powers-that-be in the local bar association.

So what’s your view?  Currently, the ABA Issues Paper on Lawyer Use of the Web and Social Media does not address the role of e-shaming in 21st Century legal ethics regulation.  Should it?

[Updated 11.12.2010 to respond to Norm Pattis comments and work through other unfinished thoughts]

  • Norm Pattis

    C:
    Don’t lawyers already have a responsibility to report unethical conduct? My sense of the Internet is that it is a virtual water cooler. Some folks want to sell the water rights. I say let ‘em sell to those interested in buying. But the Internet cops are merely duplicative of ethics committees in each bar. A few bloggers recently raised a question about a Tweet of mine; I relayed the concern to ethics folks promptly. They had no interest. That did not end the issue on line for some, suggesting that legal ethics weren’t their issue at all. I’ve earned the scorn of some Internet personalities, and I, in turn, avoid the tedious posters I find a little too unctuous. I see no harm in that; it was sort of like high school revisited. My blog is, in fact, a means of telling folks what I think and do and us by definition self-aggrandizing. But so are the efforts to keep the blawgosphere “pure.” Nothing wrong with a new ABA policy, but the market in expression is already in part self-regulating, and, in part regulated by general ethics rules. Another policy seems like wasted effort.

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  • http://constructionlawva.com constructionlaw

    Carolyn,

    Great post. I too don’t have the personality to engage in the types of posts that our other colleagues regularly post. However, I am firmly on the side of no further regulation. Most, if not all, states have ethics rules in place that should cover any un-ethical behavior and further regulation will only lead to throwing the baby out with the bathwater.

  • http://blog.bennettandbennett.com Mark Bennett

    Norm’s comment, complaining about a little virtual manhandling he received two months ago (thanks for giving me your power, Norm, but I don’t need it), is strangely on point.

    Here’s Texas’s (and the MRPC’s) “Rat Rule”:

    a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

    You’ll notice that it doesn’t talk about “ethical violations” but about “violations of applicable rules.” Any discussion of legal ethics has to start with the recognition that “ethics” and “the rules” are separate sets that may intersect. Not everything that is unethical is a violation of the rules, and not everything that is ethical is permitted by the rules. Also, not everything that is ugly or foolish is either unethical or a violation of the rules. Anyone who relies on his state bar to tell him how to behave is a fool or a scoundrel.

    Norm’s judgment errors (more than one Tweet that might come back to harm his clients, as I describe in the last three paragraphs of this post) may or may not have been ethical lapses; it doesn’t matter. They may or may not have been violations of the rules; that also doesn’t matter (though Norm tried to pretend that it does, and that the bar’s lack of interest in it means it was perfectly okay; the response was not “it’s not about ethics,” but “it’s not about the rules”). The problem was something that Norm dare not, even two months later, address: the very real possibility that a juror might see the tweets and hold them against his client.

    Why this on point? Because this distinction between what is unethical and what is forbidden by the rules is one that we want to maintain and ought to respect. We don’t want regulating agencies to go around regulating every possible ethical violation because agencies make lousy ethics.

    If we don’t want the bars to come in and make rules for us, we have to have some integrity, and not pretend that the bar’s failure to forbid something is a guarantee that it is a good practice. We have to regulate ourselves—individually and collectively.

  • guest

    I am really sick and tired of Norm pushing the envelop on this. Ask, why is it so important to him? Is it essential to his survival, reputation, to protect himself from something? His clients?

    As a former client of his, I can promise you, alerting a possible jury member of information about your client is only one of several damaging potentialities of the indiscretions Pattis has engaged in not only in his tweets but his blog entries.

    He thinks engaging in thinly veiled water cooler gossip is an inalienable right. He defends it so vigorously that is is impossible not to conclude that without it he would take anywhere near the pleasure he gets from lawyering. He scorns clients who tell him point blank to ‘stop it now’ and even seems even more obsessed about doing it more, as if to defend himself from the very complaint by the client. And finally, he actually has the gall to assert engaging in rank and sometimes vicious, slanderous gossip so detailed that he identifies clients to the world, is a protected discussion that serves the higher purpose of improving communication between lawyers and improving legal practice in general.

    He’s full of it if he thinks people can’t figure out who he is talking about sometimes, and I find it hard to believe that he doesn’t know that.

    I want to emphasize that last phrase: I find it hard to believe he doesn’t know that.

    Consider, if that is true, what the implications of and motivations for, knowingly doing that. STOP. THINK ABOUT IT.

    Trial strategy or compulsion or dysfunctional coping mechanism that shifts faults to clients?

    I am also incredibly tired of lawyers engaging in this debate as if the only thing they are professionally responsible for is the direct affect it may have on a case. GROW UP. The affect you have on a client’s general reputation with YOUR talk is YOUR responsibility, on or off line.

    I have heard so many stories from Pattis clients and former Pattis clients, it frankly makes me sick to my stomach.

    And finally, seriously consider the idea that the gossip isn’t true. So, start considering this scenario:

    A lawyer who spreads GROSSLY INACCURATE negative portrayals of certain clients. Consider that some may totally be identifiable. Consider that he won’t let them post anonymous defenses.

    The picture these factors should begin to form is one of a blog that is a weapon used to protect a lawyer from his clients, clients on whom he has pulled some major shananigans and who, because they are particularly smart and credible clients, need their credibility attacked as a way to protect the lawyer.

    That’s how some of us feel. Now you know how we feel.

  • guest

    C’mon, do you really think Mark Dubois would have responded the same way if the Courant had picked up that tweet about the pedophile cases, run your schedule through the court system, come up with the cases you referred to, sent a reporter to the two hearings that day you identified in your tweet, grilled you about the other hearings you had scheduled, grilled you about whether these hearings were the ones you tweeted about, run your tweet by the clients sitting next to you who maybe didn’t even know about them and wrote it up in the newspaper?

    Even the incredibly overweening, self serving, syndicated hubris of the Connecticut bench and bar wouldn’t be able to stomach that.

  • guest

    This all being said, a conversation I would really love to have is one that addresses what comments, if any, a lawyer might save for off the record conversations with news reporters. If a lawyer is trashing or compromising a client publicly [in either anonymously, or barely veiled] in tweets and blogs, what is he saying to reporters off the record about those clients?

    The answer to that I think is how much control over him/herself does a lawyer have and what are his/her motives for talking about clients to begin with, to tell the truth about a bad client or make a client look bad to cover the truth about the lawyer?

    NO client signs on for a horror show like that, no matter what the rules or ethics say.

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