Ethics Regulators Shouldn’t Try to Keep Pace With Changes In Technology
The law develops slowly, and not just when it comes to communications technology, social media, and the legal ethics rules governing them. Think of any major social issue since the advent of our modern legal system, and consider the length of time between social acceptance of an issue and the development of law reflecting it.
Examples include the current legal sea change on gay marriage and the long-ago settled law on issues of women’s suffrage, interracial marriage, and child labor. Rather than a problem, the slow pace of development is usually good for both law and our legal ethics rules. In fact, if ethics rule changes were fast-tracked to keep up with changes in technology, the rule of law would suffer.
Slow-and-steady development is jurisprudential
The relatively slow development of law is not a knock on jurisprudence. Law develops through the resolution of cases and controversies. This takes place within a carefully-designed process, full of safeguards that we have come to rely on, and that we would not want to see end. It would be contrary to our legal system to have an ethics-regulating body analyzing new technology and issuing guidance on its use before it became clear that guidance was needed, no matter how practical this might sound in the abstract. (Ethics regulators do often issue guidance without an actual case coming before them, because many regulators are not the arbiters of disciplinary matters, but they generally do not act until technology is used in the profession and its use makes clear that attorneys need guidance in adhering to related ethical rules.) Moreover, such an approach would be unwieldy and resource-draining as regulators tried to keep up with technology that changes so rapidly, much of which may never give rise to any real-life ethical dilemmas.
With the rapid pace of technological innovation, it is no wonder that ethics regulators have struggled recently in attempting to stay current on technological trends. Whether it is social media, social networking, or texting, we have seen plenty of examples of regulators attempting to fit new technology into existing rules. The subject of these attempts at regulation range widely, from attorney advertising to witness investigation to judicial conduct. Though technology absolutely outpaces the regulators, this is actually a good thing. Regulators’ efforts to apply existing rules to new technology have been largely successful, suggesting slow and steady is the right approach for them to be taking. As issues arise, they resolve them under current rules, as consistently as possible.
To a lesser extent, we have seen some regulators promulgate completely new rules or modify the old ones to deal directly with technological issues. These rules have been crafted to deal with very specific questions. This too is a good approach, but with application of existing rules and promulgation of new ones, the potential for vast inconsistency throughout the 50 states is substantial. This risk would be exacerbated if regulators acted too quickly.
For both application of existing rules and the promulgation of new ones, state regulators are being guided somewhat by national bodies — mainly the American Bar Association — but as the world of legal ethics evolves along with technology, there remains a need to consult local authorities on all ethics rules.
Key attempts to regulate through application of existing rules
Some of the more notable attempts by ethics regulators to keep up with our changing world come in the form of opinions, both advisory and in actual disciplinary matters.
California’s COPRAC issues advisory opinions on real and hypothetical questions of attorney ethics. In Opinion 2012-186, it tackled the question “Under what circumstances would an attorney’s postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?”
COPRAC found it appropriate to apply California’s current attorney advertising rules to social media, finding that Rule 1-400 of the Rules of Professional Conduct and existing statutes applicable to all attorney advertising apply to social media posts if they meet the threshold of being a “communication” or “advertising by electronic media”. A “communication” is “any message or offer made by or on behalf of a member [attorney] concerning the availability for professional employment of a member or law firm directed to any former, present, or prospective client.” Rule 1-400. “Advertising” is defined as a “communication” soliciting employment.
COPRAC then went through a variety of hypothetical social media posts, parsing whether the individual posts were subject to attorney advertising rules or not. Generally speaking, those that made reference to the attorney’s availability for employment were subject to advertising rules. So, posting “Another great victory in court today! My client is delighted. Who wants to be next?” is advertising. Leaving out the solicitation and simply posting, “Case finally over. Unanimous verdict! Celebrating tonight.” was not advertising.
COPRAC’s valiant effort to give guidance to attorneys using social media also highlights the difficulty of regulating its use, as it is a very fine line COPRAC is drawing between posts that are and are not advertising.
Non-lawyer players in the judicial system, particularly parties and non-party witnesses, are highly likely to be on social media. The Philadelphia Bar Association tackled the topic of investigation into a witness through their social media accounts in Opinion 2009-02. (Notably, this same topic has been pursued by multiple other regulators with similar conclusions, including Oregon (in In re Gatti, 8 P.3d 966 (Ore. 2000))).
In its fact pattern, the Philadelphia Bar considered whether an attorney or a non-attorney assistant could gain access to a witness’s social media accounts by way of connecting with the witness online without disclosing the nature of their interest in the witness. In other words, can they “friend” on Facebook or other network a witness without disclosing that they are the opposing attorney?
The Philadelphia Bar applied existing Pennsylvania ethics rules on supervision of non-lawyer assistants and general professional misconduct to come to its conclusion that such a practice would be “deceptive” and thus prohibited, whether engaged in by the attorney or a non-attorney assistant.
The Oregon State Bar, and others, considered a slightly different issue on investigating individuals when it issued Opinion 2005-164 on accessing publicly-available websites. Unlike contacting an individual through a personal social media page, information posted in the public domain, access to which does not require any communication to the witness, is fair game. Thus, if a witness fails to protect social media postings by allowing only those people connected to the witness to view them, the attorney is free to read them. Non-social media websites posted for public view are also permissible sources for the attorney to read and use. These publicly-available sites are akin to magazine articles or other publicly-disseminated media which were already permissible sources of information under existing ethics rules.
Judges are just as likely as attorneys to use social media in some form or another. Recognizing this, the ABA issued its Opinion 462 to address existing Model Code of Judicial Conduct provisions and their application to judges online.
The ABA found it appropriate to apply the basic tenets of appropriate judicial conduct, such as judges’ duty to “respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the judicial system” and to “maintain the dignity of the judicial office at all times” when it applied rules of offline conduct to judges’ activities online. In short, judges are not permitted to do anything online that they could not do in person, be it communicating directly with represented parties or ex parte with counsel appearing in active cases.
Recognizing that being connected to a person online (such as a LinkedIn network connection) does not “in and of itself, indicate the degree or intensity of a judge’s relationship with that person,” the ABA found that judges will not generally have a duty to disclose an online connection. In this statement the ABA recognizes the truth all of us involved in Facebook or LinkedIn or other social networks know – we may well be “connected” to someone without knowing a whole lot about them.
Promulgation of new rules in response to specific issues
Ad hoc opinions on specific issues of technology and social media are key to the development of this area of law, but the ABA recognized in 2009 that the time was right to consider changes to the Model Rules and thus to individual state rules. The ABA created the Commission on Ethics 20/20, the purpose of which was to conduct “a thorough review of the ABA Model Rules of Professional Conduct” to consider the need for change in light of the impact of new technology. After three years of study, the Commission on Ethics 20/20 issued a series of recommendations for the ABA to consider.
ABA model rule changes
In light of the Commission on Ethics 20/20’s recommendations, the ABA Model Rules have had a number of changes in 2012 and 2013. Those pertaining most directly to the use of technology discussed here are inclusion of email, websites and online testimonials in the comments to the attorney advertising rules of Rule 7.2 (allowing advertising generally, including through electronic media, allowing attorneys to pay for advertising, and requiring attorney contact information on all advertisements) and 7.5 (governing the use of firm names and letterhead).
States make their own changes
States have the power to modify their own rules, which some have done to clarify their positions on social media and technology issues. For example, when the Oregon Supreme Court considered the ramifications of surreptitious access to an individual’s social media accounts, it handed down In re Gatti and held that it would be deceptive for an attorney to obtain access to an individual’s social media postings by connecting with that person online without disclosing the nature of their position as counsel. Oregon then modified its existing rules on misconduct (Rule 8.4) to specifically provide that “covert activity” is prohibited, being defined as “an effort to obtain information on unlawful activity through the use of misinterpretations or other subterfuge.”
Regulating in too much detail does not make sense
The ad hoc advisory opinions and actual disciplinary decisions widely used to address emerging technology and social media tend to give general guidance on application of existing rules to broad topics of social media use. This is appropriate and useful.
On the other hand, when regulators have been tempted to get into the nitty gritty of individual functions of social media platforms and have attempted to regulate in great detail how attorneys use those systems, the results have been far less useful.
First, the resources involved in issuing guidance are great. Committees like COPRAC or individual Bar ethics committees spend months crafting advisory opinions. The committee fine tunes questions they are asked or scenarios they want to address, multiple committee members collaborate to write drafts, and full committees review and revise until the opinion is just right for public consumption. To go to all of this trouble, the opinions need to give significant guidance and not pontificate on minute details.
Second, the time it takes to issue guidance is far too long to keep up with small changes in technology and platform use. A great example is New York’s recent opinion on using LinkedIn, which was issued a full year after the feature of LinkedIn that was discussed was removed from the site. New York State Bar Association Committee on Professional Ethics Opinion 972 was issued on June 26, 2013, stating the rule that a lawyer may not list an area of practice in the “specialties” section of LinkedIn unless the lawyer is certified as a specialist in New York; since law firms cannot be certified as specialists, law firms may not use the specialties section of LinkedIn. While this opinion may be sound and logical, it is completely useless since LinkedIn discontinued the specialties section in June 2012.
Ethics Regulation Is Not Supposed To Keep Pace With Technological Innovation
Ethics regulators have been faced with a difficult task to keep the rules and guidance available to attorneys current in light of massive changes to technology and social media platforms. Overall, their efforts have been helpful and well done. Guidance like COPRAC’s Opinion 2012-186 for attorney advertising, the Philadelphia Bar’s Opinion 2009-02 on witness investigation, and the ABA’s Opinion 462 on judges on social media are not only currently useful but will remain so for quite some time, even as technology evolves. Rule changes are also useful when they address technology that is going to last for the long term. The only efforts that seem thus far to have been relatively wasted ones are those intended to regulate a specific function of an individual platform. Those wasted efforts go to prove that the useful ones are those that do not attempt to keep up with technology, but rather those that carefully and thoughtfully regulate for the long term.