The above insert comes from a recent “Practice Insight” from my malpractice insurer, CNA. Though I’ve been a satisfied CNA customer for 16 years (I moved to CNA post- 9/11 when the D.C. Bar’s “preferred provider” that I’d used for several years prior closed up shop), this advice troubles me: are we still cautioning solos about using social media in 2017?
CNA raises two concerns about solos using social media. First, CNA observes that “social media forums may create an option for disgruntled clients to state their grievances publicly.” And second, CNA suggests that solo practitioners may not have the resources to “create, monitor and comply with jurisdictional rules and regulations related to social media.”
With regard to the disgruntled clients, I’m not sure how staying off social media helps solo lawyers. Whether or not solos put up a Facebook page, engage on Twitter or Snapchat or claim their Avvo profile, there are a myriad of sites for disgruntled clients to spew venom. Apparently, CNA hasn’t heard of ratings sites like Yelp, where clients can post negative commentary about attorneys whether or not they’ve created their own listing. Heck, even before social media, clients had the ability to set up websites to vent about their lawyers – here’s an old chestnut ranting about a long-ago blog post that I wrote. In short, steering clear of social media won’t stop clients from using it – and deprives solos of an opportunity to easily disseminate favorable testimonials and useful information to respond to or counteract criticisms or insults.
CNA’s second point – that solos who participate in social media face a thicket of regulation – admittedly, has some validity. But the answer isn’t for solos to run from social media, but rather, for insurers to educate solos on applicable rules, and assure solos that they’ll be fully covered if a bar initiates an unfounded grievance. Moreover, insurers should consider funding challenges to bar rules to provide more risk-averse solos with more clarity on the regulations.
What’s most troubling about CNA’s warnings about social media is that they’re targeted only at solos. Does CNA consider solo use of social media so risky such that it may increase premiums for solos who use social media, or even deprive them of coverage entirely? Several months back, I expressed serious reservations about Professor Leslie Levin’s suggestion that malpractice insurers become more involved in regulating solos , fearing that insurers would impose onerous requirements that would increase the cost of premiums. Yet even when I wrote that piece, I never dreamed that insurers might try to prevent solos from engaging in a way of communicating with colleagues and clients that’s been around for more than a decade.
Social media has been around for at least a decade. It’s completely unacceptable that after ten years, insurers aren’t ready to assure solos that social media is safe to use. And moving forward, technology innovations will only accelerate further – wearable tech, internet of things, cybersecurity – are just some of the new challenges that solos face this year. If solos can’t receive more assurances from regulators or insurers that new tech is safe to use – and aren’t willing to take the risk without a safe harbor, then solos will be left behind. As we move into the future, solos stand alone.