Regulators, practicing attorneys, and those who opine on legal ethics seem to wait with bated breath for any sort of disciplinary sanction involving a lawyer’s use or misuse of social media.
In my view, the collective anticipation causes an anxiety that leads lawyers to distrust, if not avoid, social media. That’s too bad. Lawyers who distrust & avoid social media tend not to develop the level of tech competence required in today’s practice.
Here’s a test: you’re having coffee, procrastinating about getting the work day started. You have time to read ONE article. You see these two links:
- Lawyer who advised client to ‘relax’ in response to Facebook inquiries gets suspension.
- Nebraska lawyer suspended for failing to properly communicate with client.
Which do you choose? Everyone who chose #1, raise your hand.
As I expected, lots of hands.
The links are to the exact same story. #1 ran in the ABA Journal, #2 in the Omaha World-Herald. To borrow a phrase, social media sells. Are you telling me that my choice is “lawyer suspended for using Facebook!” or “lawyer fails to communicate with client?” Ha! I’ll take social media 11 times out of 10!
Here’s another test for my lawyer readers: raise your hand if, even without reading the story, you thought “See, I knew Facebook could get me in trouble.”
Again, lots of hands.
Now, read the opinion from the Nebraska Supreme Court. In reality, the lawyer’s violation had very little to do with Facebook. The lawyer’s responses to his client likely would’ve violated Nebraska’s rules whether transmited via Messenger, e-mail, phone call, or U.S. Mail.
In other words, a failure to communicate is a failure to communicate regardless of the medium. The lawyer who fails to engage in a reasonable level of communication via Messenger in 2017 is as guilty of misconduct as the lawyer who, way before Nirvana, failed to engage in a reasonable level of communication in 1985.
This violation had nothing to do with social media. Don’t fear social media.
P.S.: talk about burying the lede. The lawyer intentionally sued the wrong defendant in order to access deep pockets!! To me, that’s a bit more disturbing than a garden-variety failure to communicate.