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.

Sharing, clothes and looking the part of a lawyer by @Lihsa

I love social media. It’s a fascinating look into the minds of 2 billion people.

Admittedly, it can, at times, get pretty ugly in there. But then there are places of transcendence and valor; beauty and joy.

Social media is like wearing clothes: you can choose to wear a dirty t-shirt bearing a foul logo. Or you can choose to wear a Chanel evening gown. Your choice.

Being a lawyer and sharing on social media

Social media is the perfect democracy. Love it or hate it, it takes a lot of very, very bad behavior before you get banned.

I wouldn’t want to ever be in the position of @jack or @kevin and have to make a decision as to who gets kicked off of a social media site. What an ethical dilemma: do I have the right to shut somebody up on a forum that was built around the concept of free speech? Criminey; it’s all too darned close to playing god.

But I digress.

What not to post on social media

First, let’s talk about what not to post. I follow 3 rules:

  1. Is it kind?
  2. Is it necessary?
  3. Is it true?

Every time I talk about social media to lawyers, I remind them that as a lawyer, you are an officer of the court. Whether you like it or not, you are held to a higher standard. Even when you are off the clock. Where ever you go—to a party, to the grocery store, to the barbershop—you represent your client, your firm and the reputation of all lawyers. It can be a bit of a burden.

Of course, you have to bear in mind ethical rules. I would recommend reading the ABA (@ABAesq) article, 10 Tips for Avoiding Ethical Lapses when Using Social Media. Basically, don’t post anything that:

  1. breaches client (or would-be client) confidentiality
  2. breaks or creates attorney-client privilege 
  3. is false or misleading

So we’ve all learned to think before we share. Generally, I’d also advise that you stay away from any online controversy. It is too fraught with misinterpretation, misfires and can quickly turn ugly. Political statements are never going to add to any online conversation and run the risk of alienating friends and colleagues. I, personally, have never heard anyone say, “Yep, that incendiary post really got me to thinking. I’m going to change my entire position on the issue.” Never happens. So what’s the point?

I am not saying that you aren’t entitled to have an opinion and to speak your mind. But why put it on social media where it can come back to haunt you? It just isn’t worth it. I’ve found that sharing my opinions—especially online—isn’t that important. Opinions are like clothing; everybody wearing them.

What to post on social media

So what’s left? Rainbows and butterflies? Well, some days its seems that way. I remember there was a week where all I could post were pictures of Fiona the Hippo and the Gilmore Girls. Social media was not being very kind, necessary or true that week.

But that’s when I realized that it is my moral imperative to stand still in the social media storm and share. I never felt this more strongly than during Hurricane Harvey. I felt compelled to post and share on legal aid (@thehba), mayoral press conferences (@SylvesterTurner) and the flood district communique (@ReadyHarris). I certainly won’t sit here and say that I saved anyone’s life. But I do believe that I could do my part to quell the raucous rumors, distribute good information and push down the negativity.

Sometimes that’s all we can do: drown out the noise. And sometimes that takes the form of a cat post.

Sure, it is silly and may seem a bit goody-two-shoes. But that post did its job: it shoved someone else’s nasty comment down.

So pick a few things that you like: horses, cars, boat racing, history, art. And talk it up. Sprinkle in a few posts about a colleague’s speaking engagement. Talk about an organization’s good work. Genuinely fan-girl (or fan-boy) on one of your heroes. And every once in a while, talk about your own events and articles.

You may think sharing is too personal and that it can expose you to criticism or make you look less professional. Meh. We are all living in this world. All of us have run into neighbors and colleagues at the grocery store. They’ve seen us with the pizza and ice cream in our carts. 

All we can do is own it and be sure that we’re wearing a clean shirt.

Ryan has previously waxed poetic about how some mandatory bars are imposing odd and counterproductive ethics rules and opinions.

This topic resurfaced for me recently as I have been asked to present to a futures committee of a mandatory bar in November. They are wanting me to give them a picture of all that is going on with pricing, legal project management and numerous other developments in the market.

This is an opportunity to share my thoughts in a neutral environment – where I can speak quite freely. I had been giving some thought to how to best utilize such an opportunity. My mind wandered through various subjects and how I can best educate them on the realities of this changing market. My mind then shifted to what can a bar do to help its members. A lot of this thinking was around how the bar can provide resources to help its members do better pricing and bring efficiencies to their practices.

And then it hit me: Those Stupid Rules.

Oh opportunity.

Having previously worked for a mandatory bar, I have more knowledge than I care to on how ethics rules and opinions are generated. The core question at the base of every issues is “Could a client be harmed?” or some variation on that theme. On the surface this sounds perfectly reasonable, since protecting the public is part of a mandatory bar’s charge. In practice however, based on lawyers’ risk averse natures, this unit of measure is usually taken to an extreme.

Take for example Ryan’s target; the Texas Bar Ethics Opinion 642. I can predict how the discussion went around this issue. The core question was: Could a client mistake someone with an “officer” title working at a law firm to be a lawyer? At the extreme the answer is: Yes. Someone, somewhere could make that judgement. And if that’s the case, there is a concern that using those titles could be interpreted as holding oneself out as a lawyer. And we all know the danger in that. (For normal people out there, the danger is that someone might pay this ‘non-lawyer’ for legal advice.) Given that string of logic, it makes perfect sense to issue an ethics opinion prohibiting law firms from using that title.

Back in reality – this type of rule actually inhibits a law firm’s ability to better serve its clients. Professional CIOs, CFOs, CMOs and others bring an expertise that adds to the abilities of firms and lawyers to serve their clients. Inhibiting the ability of firms to attract such talent is running in the wrong direction.

The straw that pushed me over the edge (metaphor blender engaged) to write this post was visiting a law firm’s web site and seeing the words “This is an Advertisement” prominently displayed on their homepage. Of course they felt compelled to include this since some ethics rule requires it.

Seriously?

I know – I know. Someone, somewhere might confuse a website as legal advice. Right.

So … mandatory bars, here’s my top recommendation. Stop it with the stupid rules. They are not protecting clients. They are doing the exact opposite. Restrictions on advertising limit the information avilable to clients about the value and need for legal services. So in addition to asking “could a client be harmed” ask some follow up questions, like: Will these restrictions hurt clients? If clients are not aware of the value of estate planning, will they be harmed? Not only is the answer yes, but last check 50% of adults in the US do not have wills in place. Enough said.

1974 was 40 years ago. Try implementing some rules suited for today or better yet, tomorrow.

Rant Complete (for now).

Inspired by recent events.

Dewey said to Cheatum, “What ever shall we do?
Our book is getting slimmer and I haven’t got a clue
How to run a proper business, you know, one that still makes money?
We can’t just raise our rates… stop your laughing. It’s not funny!”

“Silly Dewey, how you worry!” chortled Cheatum through his drink.
“There’s no problem we can’t tackle with a good and proper think.
We’re the brightest and the smartest and by far the best paid too,
We’ll just put our heads together and we’ll figure what to do.”

From across the polished table Old Man Howe rose to his feet.
Which caught them by surprise, as he never left his seat.
This they knew was bound to be one of his classic epic speeches.
Howe began with, “Don’t ya know the depths t’which ethics reaches?”

Dewey stared into his glass and Cheatum smiled broadly.
“One tool my friends will always save the righteous and the godly!”
Howe barked his words with fervor and a bit of indignation,
“There’s no problem can’t be solved with just a tiny publication.

Let me see here, what’s the trouble causin’ you boys such distressin’?
You’re belly achin’ and wallerin’! It’s downright darn depressin’!”
“You see, sir,” started Cheatum, in his smarmy weasel voice,
“There’s all these people coming by to tell us we’ve no choice

But to change the way we’ve done things since time immemorial,
And frankly, sir, some of them’s becoming dictatorial.
How dare these non-attorneys tell us how to run our firms!?
Since when do JD Yale-ies take advice from State School worms!?”

“On the other hand,” said Dewey, “There might be something to it.
The world is clearly changing and maybe we should do it…
Change… I mean,” choked Dewey as Howe’s gaze began to burn
With the fire of holy terror at his colleague’s faithless turn.

“Noooooo!” roared Howe, “Cheatum’s got the right idea!
No non-attorney’s ever gonna call the shots ’round he-yah!”
Some staff began to cower and back away from all the clamor.
This attorney wields his ethics, like a carpenter, a hammer.

“I’ll tell you what we’ll do, to keep the riff-raff in their place.
Just change a little rule, and then we’ll throw it in their face!
We’ll say WE can’t be trusted not to cheat our own clients
As long as non-attorney staff oversee our non-compliance!”

With a gasp and sickening thud Old Man Howe collapsed and died.
Cheatum quickly grabbed his wallet; Dewey shook his head and sighed.
Before the body was even cold they’d divvied up his clients.
Dewey got the big ones, but Cheatum took the giants.

That very day they wrote the rule that Howe had recommended.
Though sometimes even good ideas have pieces unintended.
Their non-attorney staffers all packed up and walked away.
Leaving Dewey alone with Cheatum to await their dying day.

Puzzle me this: If a lawyer conversed with a client in front of a law enforcement representative, would the conversation be privileged?

Answer: No.

Conversations held in the presence of any third party, let alone one representing the government, would constitute a waiver of privilege.

Previously on 3Geeks (and perhaps too many times) we have tackled the subject of the use of free email services and how that waives privilege. But now the NSA has upped the ante on the topic, basically spreading it to all email.

Unless you live under a rock with no wifi, you will be aware that the NSA is tracking global email communications and storing them in Utah (a nice place to visit). So, as a lawyer should you now expect that a government agency is obtaining copies of all of your confidential client communications? If so, you might want to ….

Oh never mind. If we actually took this rule seriously, all lawyers would be encrypting their email communications. And we know they are not and no one is asking them to do so.

I withdraw the statement.

Image [cc] Bark

Awhile back I posted on how I thought lawyers using Gmail (or any other free email service like that) constituted a waiving of privilege. My argument was that agreeing to share privileged client communications under “a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence” with a third party was on its face – a privilege waiver.

Not everyone agreed with me – the original post had 25 comments. And there were follow up posts in response to a broader conversation. As part of that conversation, someone noted how the NY Bar had issued an ethics opinion on the subject disagreeing with my position. The opinion basically stated email was like mail and thus one has an expectation of privacy.

“We concluded based on developing experience that there is a reasonable expectation that e-mails will be as private as other forms of telecommunication.”

Well … the NY Bar should have asked Google its opinion about expectations of privacy when using Gmail. In a recent court filing, Google made it quite clear what that expectation is:

“Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”

So I reiterate my claim, only more boldly, leveraging Google’s own statement: If you are a lawyer using Gmail for privileged client communications, they are no longer privileged.

One of the very first things you hear when you attend a Competitive Intelligence (CI) seminar is that CI is the ethical gathering of intelligence. The reason that ethics is stressed so highly when discussion CI, is that if your CI team is dabbling in unethical behavior (and that gets exposed), it reflects upon your whole organization and casts a shadow upon everything you do.

It seems that there are some reporters at Bloomberg L.P. may need to sit back in on some of those classes on ethics. The report in the New York Times states that reporters used information found through Bloomberg Terminal usage from banks and traders to break stories on certain people being fired from those companies (based upon users that suddenly “went dark” … i.e., were no longer logging into their Terminals.) That type of information, while effective, falls squarely on the unethical side of the ledger, and as a result gives all of Bloomberg a black eye.

Immediately, we all started wondering what exposure law firms had to this type of research, and if there were additional issues that were at play. According to Jean O’Grady’s blog, Dewey B. Strategic, the Bloomberg Law platform was not included in this type of internal research strategy. O’Grady contacted Greg McCaffery, CEO of Bloomberg Law, and got confirmation on that point. However, as Jean also points out, many law firms have the Terminals as well as Bloomberg Law access. It brings up ligitimate questions like the one Ed Walters of Fastcase asked on Twitter yesterday:

Alledgedly, Bloomberg reporters where systematically using this type of research on a regular basis. Hundreds of reporters used the technique according to the NY Times article. It simply makes Bloomberg look bad.

In this age of instant communications, hacking, and whistle-blowers, unethical behavior is very difficult to keep covered up. This should be held up as an example to others in the world of information gathering, that if you are performing unethical practices, you should expect that eventually those practices will be exposed. When they are, you will need to spend years repairing the damage.

This same type of damage can happen with Competitive Intelligence research. Be very careful how you conduct your gathering processes, and ask yourself what would happen if those practices were exposed to the public.

Last week I posted on how recent DC Bar opinions would cause clients to have to pay for more lawyer time. I don’t think the DC Bar was attempting to directly protect the lawyers’ market from e-discovery vendors, but instead saw that protection as an unintended consequence. As a result of the post, I received a few requests to explain my position. Being a former mandatory bar guy, I explained that ethics opinion committees, when ask to clarify a rule for a given situation, will typically go with the most ethical answer they can find.

In the DC situation, the question involved the “adequate supervision” of people performing lawyerly tasks (lawyers or not) employed by a non-law firm – in this case those doing first document review with e-discovery vendors. The answer was the higher bar, stating that 1) a DC lawyer must make the final choice of personnel, and 2) a DC lawyer must supervise the personnel involved. As well, the DC Lawyer could not be employed by a non-law firm and has to have a direct attorney-client relationship with the client. The result is clients being forced to spend more on the service, in order to provide better protections for … the client.

So Greg, Ryan and I were in the pursuit of a three-beer solution when we came up with the idea for the: Ethics Opinion Question Challenge. The Challenge is to submit ethics questions to bar ethics opinion committees that force bars to release ever more restrictive ethics opinions. We think bars are at the back of the line when it comes to adapting to a changing market and this will force the issue with them, bringing them in to this wonderful mess the rest of us our dealing with. However, as a warning we should point out than an ‘unintended consequence’ of this challenge may be result in a smaller, protected market that belongs exclusively to lawyers.

Here’s an example to help participants in The Challenge: In DC, submit follow-on clarification questions related to the selection and supervision of non-law e-discovery vendor personnel. For selection – Does the final selection process need to include a full interview and verification of qualifications? It likely will, since the existing requirement for the lawyer to make the final selection implies the e-discovery vendor is not to be trusted. So the lawyer will need to conduct their own, independent review of the candidates. For supervision – Will the lawyer need to be on-site with the e-discovery personnel to supervise them, or can she supervise by occasionally checking in on them? Again, the best protection for the client will be on-site supervision.

Now here’s one trick to The Challenge. If the burden of extra effort in maintaining higher ethics falls mainly to the lawyer, the resulting opinion can backfire and be less protective for the client. In our example above, we end up with more billable hours for the client to pay. As a counter-example, ethics opinions on protecting electronic client communications came out saying no extra protection was needed. In this circumstance, requiring lawyers to employ encryption would only put a burden on … lawyers – and not lead to an increase in billable time.

So … there you have it, the Ethics Opinion Question Challenge. Feel free to post your questions here, or send them directly to your own ethics opinion committee. By the end of the year, we should have numerous opinions helping better protect the interests of clients.

OK … so that’s not exactly what the DC Bar said, but take a moment and think about what two recent DC ethics opinions are suggesting. The Bar opinions note that many e-discovery vendors providing document review services are either a) practicing law without a license (opinion 21-12), or b) splitting fees improperly with non-lawyers (opinion 362). The obvious way to comply with these opinions will be for these e-discovery vendors to be limited to a) lawyers, b) practicing at law firms.

Are e-discovery vendors practicing law? Probably

Will ethics rules and opinions stop them? Probably not.

And we continue to long for the good ole days …

Image [cc] lorzzzzzzz

When I get up in the morning, I usually look over the day’s news feed via Google News, and my wife will occasionally chime in with the question “So, is the world going to Hell in a hand basket again this morning?” Which I usually reply, “yep…” then I laugh (because otherwise I’d have to cry.)

Whether it is Scott Thompson lying on his resume, Dewey LeBoeuf fudging its AmLaw 100 revenues and profits, or some college student downloading a paper off the Internet and putting her name on it, it all points to an attitude of lack of ethics/morals, or simply an idea that the past won’t catch up to us, or that if it does, we’ll be given a pass on our previous actions because we can show that we’re successful and that those lapses in judgement are offset by the end results we’ve achieved. The sad thing is… that attitude probably wins out more than it loses. Kind of like my earlier post on The Values-Based Narcissist – without the values-based part.

It is stunning to see how successful people seem to live in a bubble of thinking that the ends justifies the means in what they do. When they are caught lying, cheating or fudging, they tend to react as if they can’t believe you are calling them on their actions, then they deflect as if it were someone else’s fault (“hey, it was the headhunter” or “hey, everyone fudges the numbers, we were just playing the game.”) Then comes the apology, which usually comes in the form very close to “hey, I’m sorry that I got caught.”

All of this ranting is really just to set up a conversation that a college professor friend of mine had with one of her students. The student copied a paper off the Internet, added her name to the top and turned it in as her own. What most of us (but not the student) would call plagiarism. I turned the conversation into a video (and she confirmed that this is very close to the original conversation.)

I know that not everyone lies, cheats and fudges their way in life… but, I do seem to find enough examples of it to fill my Google News feed each morning. I’m going to go take a walk and start laughing now… otherwise I’ll just sit here and cry (and my co-workers hate it when I do that.)