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Does the Bar Need Policies on Web 2.0?

A Connecticut Law Blog author Ryan McKeen has a problem: He's a stickler for rules. Ordinarily a love of rules isn't a problem for lawyers, who thrive on analyzing, dissecting and generally finding ways to follow (or lawfully circumvent) rules, but what's a good lawyer to do if there aren't any rules at all?

That's precisely the situation in which McKeen finds himself. An avid Web 2.0 user, McKeen can't seem to figure out or make much sense of the Connecticut Bar's policy -- or lack thereof -- on lawyer use of social media tools like Facebook or Twitter. Technically, there is a rule requiring registration of communications made by a lawyer about legal services, but the rule applies to conventional forms of advertising such as phone directories, lawyer listings and announcements. There's nothing that governs communications made, for example, to a group of Facebook friends or on Twitter. McKeen explains:

I have a Facebook page and have several hundred “friends.” Most of them are former classmates, co-workers, family, and friends with pretty much the sole exception being that I’m “friends” with Red Sox pitcher Justin Masterson, who pitched well last night in leading the Red Sox to their 10th straight win and completing the sweep over the Yankees. I digress.

My facebook page lists my occupation and describes a little of what I do. It’s not all that different than my bio page on this site, less words but the same idea.

My profile can only be seen by people that I’m “friends” with.

Sometimes, I write about law. Again not a whole lot different that what I do on this site. Sometimes, I’ll post a link on my profile page and embed an article or blog post that catches my eye. Sometimes, I’ll update my status and it will include something law related such as “off to court” or some such useless nonsense.

McKeen received some informal guidance from the bar, which suggested that "It may be best to separate [his] personal life from [his] professional life online by creating some sort of a net wall." McKeen objects to that resolution and I agree. After all, where to draw the line -- many of my personal friends are interested in my legal cases -- so shouldn't I have the right to post about them (provided that I don't otherwise violate client confidentiality)? Moreover, as McKeen points out, friends and family are for many lawyers a source of business. Those lawyers seeking to generate referrals from their personal contacts need the ability to inform them about legal issues.

So what's the upshot for Facebook? Is a Facebook page with personal information and legal commentary more like a Web site or ad (which must be registered with the Connecticut bar) or a completely personal matter, in which case registration isn't required. McKeen believes that the bar should clarify that Facebook pages are exempt from any advertising registration requirements. McKeen concludes that:

The SGC shouldn’t wait around to enact such a policy either. Failing to have a policy in place has a chilling effect on speech. I shouldn’t be left wondering if updating my status to read “busy today, last day of the month, lots of closings” or “proud of legislature for enacting Kerrigan legislation” is a violation of my ethical duties as an attorney.

As a practicing attorney myself, I understand the desire for certainty. At the same time, I'm not sure that I want any of my bars' grievance committees drafting policies just yet. Social media is still gaining traction amongst lawyers and my fear is that those lawyers presently on grievance committees don't use social media or understand it sufficiently to regulate it. As a result, asking the bars to step in and develop social media policies now could lead to an overly restrictive outcome. I'd rather continue to take risks now than push for a ridiculous policy that might require me to register Facebook pages or seek review of tweets prior to posting them.

At some point the bars will catch on to Web 2.0 and be able to make rational policy. Of course by that time we might have already moved on to Web 3.0.

Posted by Carolyn Elefant on April 27, 2009 at 04:15 PM | Permalink | Comments (5)


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