Everyday Legal Ethics – Las Vegas, Nevada 2015

One common practice amongst attorneys is to outsource blogging and social media management to web consultants. This is not surprising given the seemingly endless demands of an online presence in today’s competitive legal markets. Most attorneys do not have time to regularly be monitoring and posting to a myriad of social media websites let alone keep up with weekly blog posts. However, Rule 8.4 seemingly prohibits this increasingly popular practice in the legal community, in particular, solo practitioners. Attorneys should consider using services like Buffer to manage their own social media accounts, and find time to set aside to contribute their own authentic blog posts, as opposed to outsourcing it to outside agencies.

We had a great time visiting Las Vegas in October of 2015! I was honored to speak at NACDL & NCDD’s 19th Annual
DWI Means Defend With Ingenuity® seminar “Secrets Revealed: Overcoming the Illusion of Guilt.”Blog-Post-Vegas-2015-Ethics.001In this lecture we discussed navigating online reviews, website content and blogging practices, including knowing when to accept your web consultant’s advice.
Dealing with attorney online reviews 34% of prospective clients look to review sites when selecting an attorney

According to the ABA’s 2014 TechReport, 43% of prospective clients are looking to online reviews when selecting an attorney. These reviews are found at multiple websites including AVVO, Yelp and Google+.

Betty Tsamis Avvo Review

This Illinois attorney received national attention when she disclosed confidential client-information in a response to a negative online review on AVVO. She initially had contacted the client directly and asked him to remove the review. The client promised to take down the review if she refunded his fee. In hindsight, a $1,500.00 refund was probably the least expensive way she could have resolved the matter. Instead of exercising restraint and refunding the fee, she lashed out at him online, and in so doing, revealed the fact that he had beaten up a fellow female coworker.

 Public reprimand for responding to online review

The formal outcome of the disciplinary action was a public reprimand. However, the damage to her reputation is seemingly irreparable. When clients now want to find her online, they will have to wade through the numerous national articles written about her ethical misstep.

Rule 1.6(a) Governing Confidentiality of information

Rule 1.6 governing the confidentiality of information is often conflated with the rule governing privileged communications. As comment 6 of Rule 1.6 explains, the rule prohibits the disclosure of “all information gained in the professional relationship, whatever its source.” As a result, we are required to keep secret not only the identity of our clients, or privileged communications, but also all the details related to the case.
Comment 5 to Rule 1.6(a)

NY Bar Association and responding to online reviews

When it comes to online reviews, attorneys must be careful not to respond emotionally. The impulse to immediately answer a negative review, particularly when the review includes false accusations, is completely normal. In most instances however, taking a moment to pause and find some emotional space to think through the best possible strategy will lead to a far better solution. Call a friend, or reach out to a colleague that you can rely on to give you measured and tempered advice. In almost all instances, it is wise to first look for a diplomatic way to ask your client to remove the review. Attorneys are reluctant to call the client because by the time the review has been written, the relationship is often hostile and extremely uncomfortable. It is far more emotionally appealing to hide behind the keyboard and respond to the review in kind, rather than pick up the phone and communicate directly with the client. While the former approach may be more emotionally satisfying, it can often amplify the problem as opposed to resolving it.

Attorney Technological Competence Under Rule 1.1 Lawyers required to understand technology under Rule 1.1

In the digital age, the barrage of communication-based technology can seem overwhelming. For the average solo practitioner the prospect of staying abreast of the ever-changing world of technology is daunting. As of 2012, the rules now require that attorneys keep current with “the benefits and risks associated with relevant technology.”

Rule 1.1 Technological Competence Comment 6 on Rule 1.1 - Adding Technology Component NY on Attorney Technology Competence

In New York “[a] lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”
Arizona on Attorney Technology CompetenceBlog Post Vegas 2015 Ethics.014

In Arizona, “[a]s a matter of legal competence under Rule 1.1, a lawyer must have competence in the skills reasonably necessary for representation, which includes technology.”

California on Attorney Technology Competence

In California, “[e]ven if e-discovery is relatively new, the duty of competence is not, and in today’s technological world, every case has the potential to involve e-discovery.”

NH on Attorney Technology Competence

In New Hampshire minimal competence requires a lawyer to perform the techniques of practice with skill and required techniques include the way client information and attorney work is electronically stored.

Lawyerist.com on Basic Computer Competence Lawyerist.com on Basic Internet Competence Lawyerist.com on Basic Data Security Competence Cyber-Risk Insurance Policies Are Growing Quickly Attorney Websites Attorney Bios and Ethical Considerations

Perkins Coie ran into some trouble early in 2015 with one of its attorney’s biographies. It included the seemingly innocuous statement regarding his representation of a cloud-computing provider that had been investigated by the FTC. Although most readers would not have been able to identify the significance of this statement, Christopher Soghoian, Principal Technologist with the Speech, Privacy, and Technology Project at the ACLU, was able to read between the lines. He tweeted to his 51 thousand followers:

Tech reporters might want to call Dropbox and ask them if they’ve been investigated by the FTC. perkinscoie.com/en/experience/

Christopher Soghoian Tips Off Tech Reporters Attorney Website trends What is Important for Attorney Websites Attorneys must retain copies of their website

As a holdover from the more antiquated rules governing attorney advertising, most states impose the cumbersome requirement that attorneys retain copies of their websites for many years. The majority of states require at least two years, but some require far longer. What is unsettling about this particular rule is that most solo practitioners are completely unaware of this requirement. Even when made aware, few understand how to comply with this rule.

States that requires attorneys keep website records for 2 years States that requires attorneys keep website records for 5-7 years Attorney Blogs Why do Attorneys Blog?

Although solo practitioners are under-represented in the blogosphere, it is the smaller firms that reap the greatest economic benefit from blogging.   Nearly 50% of blogging solo-practitioners credit blogging as a source for new clients. For younger and ambitious attorneys looking distinguish themselves in an otherwise crowded online market, blogging is a fantastic way to raise your profile. Enthusiastic blogging is encouraged, but attorneys must be careful to monitor their blog posts for high-quality information. Poorly written blog posts, particularly those that do not contain useful information will dilute the attorney’s brand.

Kristine Ann Peshek

Attorneys should be skeptical of web consultants that encourage reporting case results or recent victories on their websites. In the absence of informed consent, it is very difficult to discuss the results of cases without running afoul of Rule 1.6 governing client confidentiality.

Rule 1.6(a) Confidentiality Is Ghost Blogging Ethical?

One common practice amongst attorneys is to outsource blogging and social media management to web consultants. This is not surprising given the seemingly endless demands of an online presence in today’s competitive legal markets. Most attorneys do not have time to regularly be monitoring and posting to a myriad of social media websites let alone keep up with weekly blog posts. However, Rule 8.4 seemingly prohibits this increasingly popular practice in the legal community, in particular, solo practitioners. Attorneys should consider using services like Buffer to manage their own social media accounts, and find time to set aside to contribute their own authentic blog posts, as opposed to outsourcing it to outside agencies.

Rule 8.4 (c) Misconduct Social Media and Attorneys 34% of solo practitioners report they were hired by new clients because of social media

Solo practitioners looking to grow their practice cannot overlook the potential of social media to attract new clients. The 2014 ABA TechReport found that 34% of solo practitioners reported that they were hired by new clients that found them through social media.

Rule 8.4(e) Misconduct Can you friend your judge on Facebook? Advise your clients about the dangers of discussing your case on social media Everyday Ethics for Attorneys

Attorney Erin H. Gerstenzang
Attorney Gerstenzang is a criminal defense lawyer in Atlanta, Georgia who frequently lectures on legal topics relating to DUI and traffic law. Erin has also co-chaired many DUI Seminars working closely with nationally recognized experts in her field of practice. To speak with Erin, call
404-771-6675 or click here to schedule a consultation.