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The Unbearable Smugness of an Experienced Lawyer

by Carolyn Elefant on August 7, 2011 · 10 comments

in Ethics Issues, Gaining Competence

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During a recent Social Media for Lawyers book-signing at the ABA Conference with my co-author, Nicole Black, a lawyer came past the table, picked up the book with her fingertips, as if it were radioactive, then set it down and sniffed “Oh, social media. I just don’t do any of this stuff.” When pressed, the lawyer shared that she was family lawyer, that she knew that her clients were on social media (in fact, she even asks them to sign a form agreeing to take down their Facebook page if they hire her) and that social media can be a source of business – but that she has younger lawyers at the firm “deal with all that stuff.”

To be blunt, this lawyer is committing malpractice.  For starters, as Nicole pointed out (and I agree), wholesale removal of a Facebook page (and any potential evidence it contains) prior to a lawsuit raises issues regarding spoliation of evidence and could put any verdict or settlement in jeopardy . Second, while it’s laudable to give new lawyers responsibility, they also need guidance and oversight – which experienced lawyers are obligated to provide under the ABA Model Code and most state codes. Without guidance, will a new lawyer have the capability to identify types of social media evidence that are relevant? Will a new lawyer investigating a case recognize limitations on tactics like fake friending? Even worse, without understanding social media, a more experienced lawyer may demand that a newer lawyer take a course of action that violates rules of netiquette and can cause the firm (and the newbie) substantial embarrassment and reputational harm.  And these matters involve use of social media when representing clients –  they don’t even touch on any of the potential ethics problems that can arise when using social media for marketing.

Personally, I cannot fathom the utter lack of curiosity about a powerful tool like social media. Leaving aside the marketing components (since there’s always debate over whether “real” lawyers should market at all), platforms like blogs, Twitter, JD Supra and LinkedIn are an enormous — and free resource for information about new developments in the law. Sure, you have to cut through wide swaths of garbage and advertising to find it, but it’s out there. To ignore the rich and vibrant online discussion on topics that affect our practice areas and our profession is just plain ignorant.

Just as I’ve taken younger lawyers to task for puffing credentials and violating ethics regulations in aggressive use of social media, so too, it’s necessary to call out those older lawyers, so smug in their success and their referral network that they believe that social media is simply beneath them. So here’s the message: Frankly, I don’t care if your ignorance of technology renders your practice obsolete (and honestly, most of you will retire before that happens). But letting new lawyers play around with social media for your firm’s benefit without adequate guidance is like igniting a fire in your conference room without having a fire extinguisher on hand. And failing to keep up with technology while your competitors do will ultimately disadvantage your client.

Think about that the next time you walk away from anything related to social media.

  • Andrew Flusche

    I’d say this is unbelievable, but our profession has all kinds in it. I’m still amazed at the lawyers who “don’t do email”. I agree that burying your head in the sand is a huge problem.

  • Anthony Vassallo

    Wow.  What a terribly written post.  You give no details about the rational for the FB comment or background to the vague comments.  I give no credence to anything you extrapolate from these snippets other than promoting your book.  Sorry.  Next time write something a little more detailed and insightful. 

  • Anthony Vassallo

    What a terribly written post.  You provide no context for your parade of horribles about this particular attorney’s practice.  All I understand is that you and Nicole are promoting a book and have some knee-jerk reaction to a comment for which you provide no detail or context.  I can find several viable reasons for taking down a Facebook page.  

  • Carolyn Elefant

    I wrote the post quickly, so to that extent, there’s much that could be improved.  However, to address your points more specifically.

    First, I was intentionally vague to avoid giving away the identity of the person involved.  Second, I can certainly understand a lawyer directing a client not to post on FB or other social media platforms for the duration of a case.  But if a lawyer instructs a client to remove a FB page when litigation is imminent without taking appropriate measures to preserve the evidence, the lawyer (in my view) is violating rules on preservation of evidence.  I can understand that if a case goes forward or becomes high profile, a lawyer would want to protect the client’s privacy.  But again, the site has to be preserved before it can be removed.  That was my only point.

  • http://constructionlawva.com constructionlaw

    As one who does use social media, I cannot see how it can be ignored.  Also, I agree that taking down a page during the pendency of a case could be an issue.  Thanks for the thoughts Carolyn

  • David Lynch

    I consider myself pretty immersed in “social media”, spending a small portion of my day keeping up on Google+, Facebook, and sites like reddit – but I am not at all convinced that spending time “building a brand” on Twitter, Facebook, or anything else will ever benefit anyone.  Twitter has been dead for years, and there will always be a new playground lurking around the corner.  That’s all these spaces are IMHO – playgrounds – in no way relevant to business or the practice of law.  Just my $12/worth.

  • http://www.steamenginemedia.com Nick Hamze

    Everyone is entitled to their opinion but I think you are mistaken about Twitter not being relevant to business. I can give you the names of 50 companies who do millions of dollars of business which was gained through the use of social media. People no longer hire the guy on the front of the phonebook, heck people don’t even use phonebooks anymore. The future is the internet and I think people need to realize that. Not trying to provoke an argument, I just giving my opinion. 

  • Matthew

    Apparently you don’t realize how Facebook works (surprising, given how much you tout social media). Removing a FB account does not destroy anything and that alone creates NO danger of spoliation. It’s all there until you manually delete individual posts. Facebook saves everything if you want to start up the account again later. Getting information erased is a very cumbersome ordeal. I’ve tried.

  • Carolyn Elefant

     I do know about how Facebook works – you can deactivate an account or delete it.  When a lawyer tells a client “you can’t have a FB acccount,” there is a possibility that the client will take that to mean that he must delete the account.  Unless the lawyer specifically explains to the client the difference between deactivation and deletion, there IS a risk of spoliation.  That is my point.

  • Stephen Diamond

    What? Did you have a falling out? That’s some deprecation of your co-author—on the subject, yet, of “social media.” (http://tinyurl.com/6rvc63b)

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