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

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]