10/26/17

Social media and a lawyer’s duty of technology competence


Communication and meeting people where they're at by @Lihsa


I can’t tell you how many times I’ve had the following conversation.

“Have you heard about that new Instagram / Facebook / Twitter / LinkedIn post about … ?”

“No,” followed by a bland stare. “I don’t want to know—there’s too much going on and I just can’t be bothered.”

Social media and a lawyer’s duty of technology competence - Lihsa - 3 Geeks

Oh, yes, I think to myself. And I bet your grandfather made that equally prescient comment in the previous century. “Oh, no, you won’t catch me getting on that plane / train / automobile—it’s a death trap signaling the end of civilization.”

Sentimentality and social media

I don’t think it is any small coincidence that I am JUST RIGHT NOW listening to Pandora streaming Twenty One Pilots:

Wish we could turn back time
To the good old days
When our momma sang us to sleep but
Now we're stressed out.
      Stressed Out – Twenty One Pilots (2015)



One thing I’ve learned is that if I want to get my message across, I have to communicate with people from where they are at and not from where I am at. Because, right now, I’m sitting here by myself with two cats at my heels. And they certainly aren’t listening to me.

Communication crisis of 2009

In 2009, trying to stay in touch with people was at its most problematic.

It was crazy. People were using everything and anything: landlines, faxes, cell phones, text messages, Eudora, AOL, IM, Hotmail, Yahoo, Gmail, MySpace, Facebook, Facebook Messenger, Twitter, LinkedIn and Google+. Instagram was coming in 2010. Snapchat was still on the horizon.

If I wanted to talk to my grandmother, I had to call her landline. If I wanted to get a hold of one sister, she only responded to Facebook Messenger. If I needed my other sister, she only responded to text messages. My mom would talk on mobile, but only if she was sitting down. A friend told me that she could only get in touch with her sister through the app Words with Friends’ chat feature.

Businesses were better. My firm has always used Outlook but didn’t have instant messaging yet. One colleague was at a very large consulting firm, which shall remain nameless. Said firm was just starting to phase out Eudora, so setting calendar appointments with her was problematic.

Some friends were in the throes of starting their own firms. While adept at social media, they were still using free email services. Other friends at small boutique firms trying to grow their business were opening fledgling social media accounts.

Today, things have evened out, thank goodness. Eudora, MySpace, AOL, and faxes are sunsetting, if not “midnighted.” Landlines are almost obsolete.

Just the social media facts, m’am

But some lawyers still refuse to meet people where they are at, “virtually” turning their backs on a third of the world population. Really.

If you recall, I’ve previously written about social media audiences by age—your clients and newest GCs are likely online.

And here are a few more facts:
  1. In 2017, 81 percent of US Americans have a social media profile, a five percent increase from 2016.
  2. There are 1.96 billion social media users worldwide.
  3. In 2018, it is predicted that 2.5 billion people will be on social media. Percentage of US population with a social media profile from 2008 to 2017.
Right now there are 7.4 billion people living on this blue planet. That means that one-third of the population will be on social media in 2018—let’s just say that all working adults will have a social media account of some form.

Duty of technology competence

And as for your ethical obligations, lawyers now have a duty of technology competence in 28 states. ABA Rule 1.1.

For lawyers, the duty of technology competence goes even further; it isn’t just about knowing how to use a social media account. It's about understanding what needs to be turned over in discovery, what is admissible as evidence, what kind of relationships you can and cannot have with opposing counsel, the jury and the judge. It's about being aware of what is being said online about you, your client, the opposing party and your expert.

Robert Ambrogi (@bobambrogi) discusses this most recently in his 2017 article, Another State Adopts Duty of Technology Competence, Bringing total to 28.

And he also keeps a running list of all of the states that have adopted the ABA Rule 1.1.

So, sure, if you are in one of the 22 remaining states, no worries. Just don’t take any cases in the other half of the US.

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2 comments:

John O'Dowd said...

The link to Robert Ambrogi March 2017 isn't working. It should be

https://www.lawsitesblog.com/2017/03/another-state-adopts-duty-technology-competence-canada-may-also.html

John O'Dowd
http://www.ucd.ie/research/people/law/mrjohno'dowd/

Lihsa said...

Thanks, John. And I overlooked Robert's later post that brings the count up to 28 states. Got to look out for each other!

 

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