Techno-powered Ethical Oversight for Lawyers – What Do You Think?
Last month, Docracy , a slick form-sharing platform launched a Terms of Service (TOS) tracker that monitors the TOS at over 900 social media sites. Docracy’s new tool (which you can subscribe via RSS feed ) is indispensable whether you’re a lawyer reliant on sites like Facebook or Twitter to market your practice or who advises clients on the legalities of social media. But the TOS Tracker also got me wondering about another lawyer-related question: should bar regulators employ technology to monitor or audit law firm websites?
Docracy’s TOS tracker makes fairly clear that the technology needed to track changes on websites is readily available and not all that difficult to develop or implement. Presumably, designing a site crawler for lawyer websites would be even easier for a bar regulator since it could require lawyers to pre-register their sites, and therefore, the tool would not even have to locate the sites, but simply monitor and ping any changes. Eventually, states might refine a tracking tool so that it would not simply report changes and updates for review by a regulator, but could evaluate compliance and highlight violations.
A bar-sponsored tracking system offers several benefits (as well as significant drawbacks that I will discuss as well). A bar tracker surely would have picked up a site like that run by Rakofsky which was crawling with red flag violations. Moreover, because (sadly), there is often a correlation between cutting ethical corners in marketing and practice, nabbing lawyers for noncompliant advertising practices might force them off the street before they have an opportunity to harm actual clients. In addition, subjecting all lawyers equally to oversight might eliminate the current disciplinary system of selective prosecution which is often motivated for political or anti-competitive reasons (most lawyer websites are reported not by mislead consumers but by disgruntled competitors)
Still – even though the concept of techno-driven ethics enforcement intrigues me, don’t think for a minute that I would ever endorse it. Putting technology tools in the hands of a state enforcement agency is risky business. One need look no further than the way that municipalities have converted red light cameras into cash cows to fill their coffers to get a sense of where technology-enabled ethics enforcement might lead if applied to lawyers. Plus, I can’t think of anything other than a 6 month stint in Antarctica that would chill lawyers’ First Amendment protected speech as much as a techno-driven ethics oversight program.
Even so, a good tech tool is hard to waste. Perhaps the best approach then is to put technology-driven ethics tools in the hands lawyers themselves to make it easy for us to self-police and comply. Oh but wait – creating that kind of system would mean that we’d need to make ethics opinions more accessible – and we can’t have that, now can we?
What’s your view of techno-driven ethics compliance? Please weigh in below. And by the way, whether you comment or not, do check out the Docracy TOS Tracker. Way cool!
In California, for many years, bar investigators investigated and brought charges on some yellow pages advertisers whom they felt crossed the line. A frequent issues was whether there was compliance with this statute: “Advertisements offering
representation on a contingent fee basis must disclose whether the client will
be held responsible for costs advanced by the lawyer if no recovery is obtained.”
[Bus.
& Prof.C. § 6157.2(d)]. Why would we not expect “state of the art” review by regulators of ads in an “electronic medium,” which is statutorily defined in California to include “computer networks?”
I know that the Virginia Bar randomly audits members social media profiles and that bars continue to engage in oversight independent of the medium. That’s the nature of regulation. The point of my post wasn’t to suggest that bars should not oversee attorney use of social media and the web; of course they should consistent with what they’ve done for yellow pages and paper ads. Rather, my question was whether we should move from an ad hoc system of enforcement to one where bots rather than humans identify non-compliance – as is the case with the red light cameras. We have the technology to do it; the question is whether we should.
If and when bots can serve to do what people can’t, keep an eye on the huge number of lawyer websites, both static and dynamic, it could well serve as an important first step in identifying ethical problems. Unlike red light cams, however, it is only a first step.
The sites red flagged by bots would have to be reviewed by humans. But as an alternative to what exists now, either an ad hoc system or benign neglect, it offers the potential to keep lawyers in line going forward. And lawyers definitely need to be kept in line.
Internet Archive’s free Wayback Machine would allow any regulator (or anyone else) trying to look at past versions of a website to do so. It covers website versions from from late 1996-on, and has records on 240,000,000,000 URLs. You might be able to build an ethics bot to look for specific problem language on top of this. Either way, lawyers who have had improper language on their website are very catchable using today’s tech.