The ABA is attempting to formulate a more comprehensive response to this changing environment via the ABA Commission on Ethics 20/20 Working Group on the Implications of New Technologies because, as the ABA reporter for this working group has admitted, “it is unclear what constraints there are. The law is still very much in its infancy.” The ABA commission on Ethics 20/20 is considering recommending “significant” amendments to the ABA Model Rules of Professional Conduct. Although the commission will be looking at many aspects of internet usage by attorneys, one purpose of these amendments will be to address how the model rules conform to the emerging social media landscape in particular. “The Ethics 20/20 Commission is trying to look at all aspects of how lawyers use the Internet to develop clients. It has an open mandate to try to assess what changes the legal profession’s regulatory structure will need in order to prepare for the future.”
In September 2011, the commission released for comment a number of revised proposals for amendments to the ABA Model Rules of Professional Conduct with regard to “Technology and Confidentiality” and “Technology and Client Development”. The comment period on these specific proposals was only open through November 30th of the same year.
While this general lack of understanding about how the model rules apply to social media usage is a concern for many attorneys, Model Rule 1.1 indicates that a lack of understanding about the technology behind social media, as well as the media itself, may create treacherous ground for practicing attorneys, regardless of whether they participate in online social networking at all.
MR 1.1 states that a lawyer shall provide competent representation to the client, and such competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. As recent studies indicate that over 80% of Americans use social networking in some capacity on at least a monthly basis, attorneys must consider whether competency could be challenged when a lawyer doesn’t have a basic understanding of these ever-developing complex networks and the ramifications (both intended and unforeseen) of using these social networking sites. The Model Rules say that the “requisite level of competence can be achieved by reasonable preparation”, but given the complex and ever-changing technologies behind these social networks, it may not be possible for the average lawyer to meet this competency threshold.