By Chris Homer
One of the most important ethics changes in legal marketing revolves around the word technology. In the ABA model rule 7.1 [8], they added a general competency to keep abreast with “relevant technology.” Now, obviously those two words are incredibly vague. Technology could encompass everything from email to VR Headsets to self-driving cars. Why is this important? We are starting to see more and more states adopt this change in their model rules.
So, where do we begin?
There is no doubt that social media use continues to increase and with it molding people’s lives and habits. How many people do you know that habitually check Facebook? With increased dependence comes multiple issues with solicitation, attorney-client relationships, and even candor to the tribunal issues. You, as an attorney, have to be able to not only use social media as an advertising tool, but understand how various social media platforms operate so that you can properly advise your client on how to use social media during their case.
In cases all across the country social media accounts are quickly becoming admissible evidence. Unlike an email account, courts are finding that the entire account can come under scrutiny, mainly due to the increasing relevance of images on accounts.
You also have to watch out for violations of 1.6, Confidentiality, when using social media accounts. We have seen examples of attorneys posting information about their case, judges, and even jurors. Please don’t post anything on social media regarding your cases.
Another change that we have been seeing involves a lawyer’s communication with clients and prospective clients. There was an opinion that came down in Florida that stated text messaging a prospective client is an acceptable form of solicitation. Before this ruling sending a text message was under the same umbrella as face-to-face solicitation, which is forbidden because “The situation is fraught with the possibility of undue influence, intimidation, and over‑reaching,” as the American Bar Association says.
The argument was presented because not everyone has an email address and many people rely on text messaging as their main form of communication. An Orlando law firm argued that text messages look identical to emails, an acceptable form of solicitation. All other ethical rules still apply under 7.3. This is a very interesting opinion that we will be following very closely. As of this article, we could not find any other states that have adopted this opinion, but we would imagine this will slowly start popping up in states across the country.
The last ethics change is regarding client information and where it is stored. We have been urging law firms to move a paperless approach to help increase law firm efficiency, security, and reduce the need for endless file cabinets.
We followed an opinion in Tennessee that stated that storing your clients information in the cloud is acceptable as long as “(1) all such information or materials remain confidential; and (2) reasonable safeguards are employed to ensure that the information is protected from breaches, loss, and other risks.” What is interesting about this opinion is that the state decided that it didn’t want to establish a standard of care, but it will offer guidance from other states.
With technology advancing so rapidly, states can’t keep up with the ever-changing landscape. More and more states are referencing each other’s opinions instead of making their own.