One problem for lawyers looking to the rules for guidance when it comes to new media technologies is the glacial pace of change. Bar ethics rule amendments happen only at the tail end of an exceedingly deliberative process. Changes must work their way up through committees and ultimately be approved by a state’s Supreme Court.
In California, for example, the Bar is nearing the end of a process to align its Rules of Professional Conduct with the ABA Model Rules, while at the same time dealing with overlapping regulations on attorney speech in California’s Business and Professions Code. That process is now well into its second decade. The term “social media” hadn’t been coined when the Bar began its inquiry, and Twitter, Facebook and the like hadn’t been dreamed up.
So it should come as little surprise that the rules are at best vague when one tries to apply them to new forms of communication.
This isn’t necessarily a bad thing. Thoughtfulness and consideration are hallmarks of good lawyering. Just don’t expect to be able to turn to the rules themselves for the answer to whether you can communicate with potential clients via their Pinterest boards or Instragram postings.