Podcast Ep. 9 Social Media Ethics and Technology Competence with Nicole Black

Think of online behavior as an extension of offline behavior. If activities run afoul of ethics rules offline, don’t do it online.

Nicole Black is a Rochester, New York, attorney and the Legal Technology Evangelist at MyCase, legal practice management software for solo and small law firms. She has been blogging since 2005, frequently speaks about legal technology, has written a weekly column for the Daily Record since 2007, is the author of “Cloud Computing for Lawyers,” coauthor of “Social Media for Lawyers: The Next Frontier,” and coauthor of “Criminal Law in New York.” She is easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. Website: lawtechTalk | Twitter: @nikiblack

Podcast shownotes

Twenty-seven states have adopted some duty of technology competence requiring lawyers to understand and use technology to provide adequate representation to their clients.

It can cause significant stress for solos and small firm attorneys, in particular. On top of representing their clients and maintaining competence in their practice areas, while trying to figure out how to run their businesses which law school doesn’t teach, they have to be up on technology. It can be overwhelming.

But it’s important to be on top of changes in technology. If you’re a litigator and don’t understand social media and how it can be used  to mine for evidence and research jurors, you may be committing malpractice. 

Question: How can attorneys make sure they’re complying with ethical obligations regarding social media and technology?

Answer: The rule of thumb is to think of your online behavior as an extension of your offline behavior. Consider if you’d be able to do someone offline and apply that to your online activities. So, if you can’t post something in print with language that requires a “this is attorney advertising” disclaimer because it’s blatant advertising and not just educational, don’t do it online.

Attorneys are responsible for complying. In other words, don’t outsource your ethics. Sure, legal marketers need to have an understanding of the rules but the ethical obligation lies with the lawyer. It’s the lawyer’s job to inform their legal marketing team of the ethics rules and review copy to make sure it’s compliant.

Remember: The online is an extension of the offline and the medium doesn’t change the message.

Mining social media data

Lawyers are now using social media for more than marketing purposes. They are mining social media for evidence and to research jurors. Anything that is publicly viewable is fair game when mining social media for evidence.

What about information behind the privacy wall on social media? Nicole provides some insight into the ethical considerations for disclosure when friending or connecting with someone online for the purpose of mining private data, including differences among jurisdictions.

Bonus takeaway

Pick one of the main social media platforms you’re not already using that might be relevant to you for marketing purposes or for litigation purposes and create an account and learn the ins and outs of the platform.

Links to referenced sources

• Carolyn Elefant, Nicole Black, Social Media for Lawyers: The Next Frontier.
• New Guidelines: ABA On Email And NYSBA On Social Media
• May 11, 2017: NYS Bar’s Commercial and Federal Litigation Section Releases Updated Social Media Guidelines for Attorneys