ABA Commission on Ethics 2020 Wants Your Comments
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.
I just finished sitting in on a subcommittee review of the proposed NC Bar FEO 7 that covers cloud computing and SaaS. One of our discussions related to the cost-savings of cloud computing when looking at the risks vs the benefits in practice management. Well, the concerns here are very different between solos who see more of a cost-savings from using cloud computing and larger firms with more resources that may not. Therefore, it is really important as you say to make sure that the solo perspective is well-represented here.
So much of this comes down to educating the rule-makers and trusting that as professionals we can be responsible to make educated business decisions and conduct due diligence before risking the confidentiality of our clients' data. One option that is being discussed here in NC is whether the attorney should be “required” to give client notice of the use of specific SaaS products and even if after notice, they have to give active consent of that use. But what if a firm decides to use SaaS with existing clients they have had for years? Would they be required to go back and get informed consent from those existing clients before moving their client data onto the new system? Should we even be required to ask permission from out clients to use certain business management tools? Some fascinating questions are coming out of this. My hope is that any opinions stay a source of guidelines and recommendations and do not become written into the rules. There are just too many variables at play here to write a single rule that would not cause even more confusion.
I am one of the Reporters for the Ethics 20/20 Commission and was the primary drafter of the papers that you reference. The following response, however, is made in my personal capacity, and not on behalf of the Commission. My comments do not reflect the views or positions of the Ethics 20/20 Commission or any of its members. I am commenting here because I think some of your criticisms of the paper, which are based on your admittedly cursory reading, merit a response.
First, as stated clearly in the papers, they contain no proposals; they clearly state that the Commission has taken no position on any issues. The papers merely identify areas where questions exist, and they solicit responses. I am hopeful that, after a careful reading of the papers, you will submit comments directly to the Commission so that it may fully consider your views.
Second, you suggest in several places that the issues identified in the papers are easily solved and don’t require guidance. For example, you point out that the mixed use of Facebook for professional and personal reasons is as straightforward as handing out your business card at a PTA meeting. I think that’s an oversimplification. As long as the business card satisfies the legal ethics rules, you can do whatever you want with it. The problem is that some Facebook pages do not satisfy the legal ethics rules. Is that a problem? It’s hard to know unless we have a way to determine whether a Facebook page should even be covered by the ethics rules. How do we make this determination? The law is far from clear on that issue.
Similarly, with regard to ghostwritten blogs, you suggest that clients should have to employ Google searches in order to figure out whether a lawyer’s blog posts were ghostwritten. That’s not only putting the burden in the wrong place (on the client), but it is not, I believe, necessarily an accurate way to determine whether a lawyer’s post is ghostwritten.
With regard to cloud computing, you suggest that the “cloud computing rule is even scarier.” I’m not sure what rule you are referring to, because there is no such rule in the paper. Again, the paper is designed to elicit comments on what guidance might be needed in these areas, not to propose specific rules.
Finally, your comment regarding vendors and marketers dominating the rule making process is misplaced. The Commission is engaging in a broad outreach to all segments of the legal profession, clients, the public, and relevant industries as it studies these and the other issues on its agenda, just as similar ABA Commissions and Task Forces have done in the past. This is, in my opinion, the responsible way to ensure that the Commission gets as much relevant information as possible before it starts to determine what the Commission’s recommendations should be.
Thanks for your reply. You are absolutely right that the paper does not take any position on any of these issues, a point which I should have included in my post and will update to do so. I posted about the rules on Solosez as well and had made clear that the Commission's white paper did not draw any conclusions; I was careless not to do so here.
I take the ghostwriting issue very seriously and I do consider it problematic. My offhand comment was not intended as an ethics solution but just a quick way to assess the extent of the problem. I am glad to see that the Commission is taking up the ghostwriting issue.
My point about the PTA meeting is that lawyers' communications are always a mix of business and personal. Facebook is a mechanism for lawyers to communicate with others on a personal level. Granted if a law firm sets up a Fan Page and presents itself as a firm there are other issues, but the White Paper does not draw that distinction and seems to suggest that any communication by an attorney via a Facebook page constitutes advertising.
Regarding cloud computing, yes, my language was imprecise. But honestly, even the suggestion that cloud computing is similar to outsourcing and that lawyers maintain the same oversight responsibilities is terrifying to me as a solo. Will I have to oversee my bank and trust transactions? My phone company's security? Why is cloud computing viewed as something so different. But you are right, there's been no rule proposed yet and my language was imprecise.
Finally, on the issue of vendors and marketers, yes, I realize that the Commission is reaching out to a broad spectrum. The problem with limited response is not at all due to the Commission, but rather to the inability of busy practicing lawyers to find the resources to mobilize to respond.