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.