Having attended numerous conference sessions on Social Media, in addition to presenting a few as well, much of the content at the ABA Mid Winter Workers' Compensation Conference Social Media session in Chicago last week was not a surprise to me. Still this session, heavily geared to attorneys in the audience, contained some information I think would be very useful for both attorneys and the people they represent. Specifically two points made really stood out for me.
Presenters Will Hornsby and Gina Furia-Rubel made it abundantly clear that the American Bar Association has established a standard declaring attorneys have an ethical obligation to understand technology and the systems they use. This was by far the biggest takeaway for me, as I believe today it is the largest vulnerability for lawyers venturing into the realm of mobile technology and social media.
It is very difficult to know what you do not know, and the rapid advancement of these realities present some unique pitfalls for those in the legal profession. Someone who “does not understand” technology has particularly interesting liabilities from potential misuse of same. And there are many attorneys out there who are struggling with incorporating these alien concepts into their everyday practice.
At the core of the presenters message on this topic seemed to be the ubiquitous disclaimer that should be included with all electronic forms of communication. They spoke of making sure all forms of communication were adequately covered, whether it be standard email, discussion boards, blogs or mobile devices. One especially useful idea regarding email on mobile phones, which have limited room for extensive disclaimers, was to include a link to a standard disclaimer on the attorney's website.
The need for an adequate disclaimer was the primary driver for the second takeaway point. That second point was a discussion revolved around exactly “when” an attorney/client relationship is established. According to Hornsby, that determination might be “in the eye of the beholder”; in other words, an attorney/client relationship might actually exist because a person believes it is so.
That might result in quite a surprise to the attorney who offered helpful advice on LinkedIn or some other discussion platform.
More specifically, Hornsby and Furia-Rubel told those in attendance that a relationship could be considered to exist “when the person/s believes there is a relationship AND when there is a reasonable basis for that belief.” They emphasized that attorneys must take care to not discuss specifics on public platforms, and to make sure that they post, or the host system has, adequate disclaimers in place that make it abundantly clear that no relationship is intended or implied. They provided good examples of where some attorneys may have crossed the line in giving advice online, and where they risked creating that relationship that could bond them to the case and future issues.
It was solid advice for a group that is largely working to integrate these new systems into their professional lives. Understanding technology and the services enabled by it is a crucial, yet extremely difficult part of this equation. Attorneys must work to educate themselves in this region, and in fact are considered to have an ethical obligation to do so. I suspect they will find making that effort is better than being burned for not knowing what they do not know.