Ethics opinions have to reflect the present and future—not the past
Carolyn Elefant
OUTDATED, UNAVAILABLE
There are at least two problems with how ethics opinions are issued and circulated. First, with technology changing so rapidly and bar committees short-staffed, regulators can’t keep pace. By the time they issue an opinion, it might already be outdated, as was the case when a New York opinion banned lawyers from listing “specializations” on their LinkedIn pages only to have the site eliminate the specialization category by the time the ethics opinion was issued.
The second problem is that the legal ethics opinions that govern lawyer conduct may be inaccessible to lawyers. Opinions in my home state of Maryland are only available to state bar members unless some news outlet publishes them. And in states where such opinions are freely available, online search tools can be primitive, if they exist at all.
Meanwhile, most commercial research services do not have a complete library of ethics opinions, so lawyers who want to summarize current ethics rules on a certain issue might have to visit two or three sources.
As a result, just as legal ethics have made lawyers irrelevant to clients, the challenges in accessing and researching ethics opinions have made legal ethics irrelevant to lawyers.
NEEDED CHANGES
What can be altered to make lawyers and legal ethics more relevant in today’s fast-changing world? Here are a few suggestions:
View ethics in context. In issuing ethics rules that govern social media, online advertising and novel business platforms, regulators must do so in the context of how clients currently use and understand these activities.
When regulators consider their work, they must evaluate whether a particular online activity would deceive or otherwise harm a reasonable consumer well-versed in using that platform in other contexts, rather than whether it might mislead a client who stepped out of the 18th century.
Second, regulators must recognize that client protection goes beyond merely preventing the harm that might result from a specific situation. Instead, they also must evaluate whether the harm of banning a particular activity outweighs the harm of allowing it. For example, although there’s always a possibility that an online review might be deceptive, given that most of today’s clients rarely make a purchase without reviewing a provider’s ratings and testimonials online, the low risk of harm that might flow from lawyers posting deceptive online reviews is readily outweighed by the harm to clients deprived of a source of information they’ve grown accustomed to in other industries.
Have hands-on experience. On my blog, MyShingle, I would never review an online product unless I first viewed a demo and then experimented with the technology. The same principle should apply to regulators: Before passing ethics judgment on LinkedIn, Avvo Answers, Facebook or any of the many online platforms in existence today, they should have a minimum of 10 hours of hands-on experience using and testing the product.
Not only would this hands-on experience lead to more accurate descriptions of a particular technology in an ethics decision, but most likely it would show regulators that the platform is relatively benign.
Move toward uniform rules. As lawyers do business across the internet, uniform regulation is more important than ever. Most obviously, creating consistency across all 50 states would help those lawyers caught in the crosshairs of conflicting jurisdictions. But consistent rules benefit clients, too.
Because lawyer profiles on LinkedIn or Avvo Answers are visible in all 50 states, a client who lives in a more restrictive jurisdiction where a disclaimer is required may begin to think that their lawyer is inferior when compared to other lawyers living where disclaimers are not necessary.
The most significant benefit of uniform rules is that regulators could collaborate on one set of rules and ethics opinions, rather than 50. This is essentially what happens today, albeit less efficiently: One state addresses a new technology issue, and then two or three dozen other bars write pretty much the same thing. Why not stop the charade of state independent oversight of ethics and encourage regulators from all 50 states to work on one set of rules?
Make rulings freely available. For legal ethics to play a relevant part in regulating lawyer conduct, the rules and ethics opinions interpreting them must be accessible and searchable. This means regulators must remove their ethics opinions from behind the pay wall and place them where they’re available to all lawyers.
As we march through the 21st century, the goal of protecting clients remains as important as it has always been. But to be able to protect clients, we lawyers must first ensure that we remain relevant.
This is the last Building the 21st Century Law Firm article in our 12-month series, but it’s certainly not the last time we’ll cover the topic. Check the ABA Journal and ABAJournal.com for future stories on how to establish and grow your law firm.
Carolyn Elefant is an energy and eminent domain attorney based in Washington, D.C. She says blogging at MyShingle “has given me a bird’s-eye view of the changes that have been roaring through the legal profession and an opportunity to chronicle and speak on these trends.” This article was published in the December 2017 issue of the
