More on Tweeting Professional Responsibility and ABA Revisions to MR 1.1

My post on using Twitter to teach Professional Responsibility generated a few comments and questions here at the LEF as well as from Twitter followers, so I thought it was worth taking them up in a second post on the topic.  (For those of you who missed it, I'm projecting a large, live-discussion feed on the wall of my classroom in PR this semester--more here.)

I'll start with a question Monroe Freedman asked, which gets to what I think is an important debate sparked by the ABA's latest revisions to the Model Rules: "I'm not a twit, or use facebook or linkedin or utube or whatever else, because I find them a waste of time and an invasion of privacy, and I'm not willing to agree to their terms. Does that make me incompetent?" 

In other words, how much technology must lawyers understand and, importantly, adopt to satisfy our duty of competence under the Model Rules?

Here's what the revised Comment 8 to ABA Model Rule 1.1 has to say about it:

Maintaining Competence.  To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Does this mean all lawyers must use Twitter?  No.  But that's not why I'm teaching with this tool in my PR class.  My point is that lawyers do need to keep up with relevant technology, which includes thinking about how to use new technology tools--such as social media--in our law practices. Twitter is an example.  (I'm also hoping that this experience will get students thinking about how to use social media in building a professional reputation as well as to cultivate a client base.)

I anticipated that some of my students might share Monroe's privacy concerns, and I offered an opportunity to opt-out.  I heard from a handful of students (out of a class of 85) that they preferred not to open Twitter accounts, so I decided to try a different platform.  Josh Blackman tweeted me the suggestion of TodaysMeet.com, which he uses in his classes.  TodaysMeet gathers less information about users--more on their privacy policy here--and is viewed only by others in the room. I used TodaysMeet on the second day of classes--students with privacy concerns about Twitter were happy, but others still wanted the ability to communicate with the class and the outside world simultaneously.  Going forward I'll probably use a combination, requiring participation on TodaysMeet days and allowing for optional participation on Twitter days.

Others asked about how I encouraged participation--I treat it like regular class participation for cold-calls and volunteers.  As for logistics, I have a separate laptop and projector for the live-discussion feed, projected next to the screen with my PowerPoint slides.  I'll be adding new kinds of technology for students to experiment more in future classes...and will report back here.  (Cross-posted at Professional Responsibility: A Contemporary Approach)

Comments

[Monroe Freedman]

If I were still taking responsibility for cases myself, I would probably rely on Comment [2] to MR 1.1 whenever social media might be relevant: "Competent representation can also be provided through the association of a lawyer of established competence in the field in question."

In a criminal case, for example, I would certainly have a competent person check out any postings by prosecution witnesses for potential use in cross-examination.

Coincidentally, in a class in which we analyzed Comment [1] to MR 1.3, I raised the following question: Assume a prosecution for rape. The defendant admits to his lawyer that he raped the woman at her apartment after picking her up at a bar. However, the defendant has found an online posting by the woman that she was “feeling horny tonite & think I’ll go back 2 that bar where I met that hot guy [the defendant] last week.” The defendant wants the lawyer to use the posting in cross-examining the victim. Must the lawyer do so?

[Doug Richmond]

As I understand your posts, you encourage students to tweet during class. I understand the technology aspects of competence, but if I am correct in my understanding of your use of Twitter, why do you permit any sort of in-class participation other than speaking? Students are not going to leave your class, go to work as associates at law firms, and tweet with partners assigning them work about those projects--and certainly not while the partner is in the process of communicating important information about a project. Nor are students going to tweet in client meetings or in court apperarances. How are you doing anything other than discouraging or retarding students' development of communication skills? Of course, if my understanding of your use of Twitter is incorrect, you can disregard all of this.

[Jgmilles]

Renee, I'm an enthusiastic user of Twitter (@jgmilles) and other social media, so I'm very interested in your experiment. Unlike Doug, I have no problem with encouraging alternative means of communication. Certainly we try to inculcate professional values in class, but the classroom is not the same as the office and, in my view, should not be. There are always some students who are reluctant to raise their hands, and I don't think they necessarily become bad lawyers. Further, there are no doubt unasked questions that I never know the students have, and if Twitter (or a chatroom format like TodaysMeet) brings those questions out, so much the better.

In the interest of encouraging questions and feedback: do you expect your students to log in under some recognizable form of their name, or do you permit pseudonymous or anonymous postings?

I've considered using something like Google Chat to allow students to send questions to me during class, but without projecting them for the whole class to see. My chief worry about using a projected stream of comments in the classroom is the fear of the class getting out of control. Are you familiar with danah boyd's bad experience with a Twitter backchannel at the Web 2.0 Expo in 2009? (See http://www.zephoria.org/thoughts/archives/2009/11/24/spectacle_at_we.html) Do you have concerns about sexist or other offensive comments on the screen?

[Doug Richmond]

I agree that many students who do not raise their hands do not become "bad lawyers." Indeed, that is true for most all students who do not volunteer in class. But that doesn't mean that we should not encourage students to discuss issues in class rather than allowing them the less social alternative of Twitter. That seems especially true in light of the relentless criticism of law schools for not developing students' interpersonal skills (the validity of those criticisms is a separate issue).

[Stephen Gillers]

The Model Rule amendments were intended to ensure that lawyers stayed aware of changes in technology when those changes might improve client service or reduce cost. Also included was a caution about taking steps to protect information conveyed electronically.

Teaching students about how to use social media -- assuming they don't already know more than the teacher -- is of a different order. Use of social media can play into law practice as a way to attract clients (within the rules on advertising) or perhaps (though I doubt it) as a way to communicate with current clients. Use of social media also presents challenges to lawyers because of danger to confidential information, unintended formation of professional relationships, etc. So as a phenomenon carrying PR lessons, it is apt for the classroom.

But using a Twitter-like service in class -- perhaps with the same 140 character limit -- raises a concern. As Doug says, learning how to talk law is important. We don't want to substitute tweets for talking. Apart from good judgment, it is hard to think of a skill more important to lawyers than clarity in written and oral expression. We probably do students a favor by asking non-volunteers questions in class, hard as that sometimes is.

Also, I worry that if PR gets trendy this way -- apart from slides with the Model Rules or the occasional video -- it will weaken the effort, already an uphill battle, to get respect for the subject and the class in the law school curriculum. I recall the effort to substitute the pervasive method for a PR course as a way to satisfy the ABA and court requirements. The pervasive method is fine as an add on, but treating it as enough demeaned the subject. Would we teach constitutional law that way? The pervasive method is probably dead now that, at the urging of some of us, the NY Court of Appeals has adopted a rule requiring a freestanding 2-credit class in legal ethics for both JDs and LLMs who wish to take the NY bar. The ABA may adopt a similar rule.

If use of social media is a skill that will help in practice, fine. To the extent its use in practice carries risks, students should be taught them. But use of social media is not an intellectual skill and unless it appreciably adds to the quality of discussion of ideas and doctrine, employing it may create risks to the course's credibility with both faculty and students. Or maybe I'm just a curmudgeon out of sync with the brave new world. Or maybe both.

[Renee Newman Knake]

Here are a few thoughts about the comments above. And at the outset, let me say thank you to Doug, Jim, and Stephen for sharing your thoughtful and competing perspectives on my classroom experiment. I’m planning to share the exchange with students. As for your specific observations:

Doug, you wrote, “Students are not going to leave your class, go to work as associates at law firms, and tweet with partners assigning them work about those projects--and certainly not while the partner is in the process of communicating important information about a project..” And that’s true. I wouldn’t expect them to do so. (Indeed, given the state of the economy many law students won’t even be working as associates at law firms…but that’s a topic for another post.) I’m not suggesting that students should tweet to a supervising attorney about a client’s work (though surely attorneys do tweet back and forth about non-confidential matters, just like Professor Blackman and I recently tweeted back and forth about using Twitter in class). My class provides opportunities for students to respond the way they might be asked to do so by a supervising partner, a judge, etc. when I cold-call. But by incorporating social media I’m endeavoring to inspire students to think broadly about how they might reach new clients and retain them.

Doug, you also said “But that doesn't mean that we should not encourage students to discuss issues in class rather than allowing them the less social alternative of Twitter.” To be clear—I’m still encouraging in class discussion; Twitter is a supplement—I haven’t altered my practice of cold-calling or taking volunteers. But I’m also curious whether you’ve ever experienced live-tweeting? I find it to be an incredibly social interaction because it allows anyone in the room to comment or engage in dialog. (Though I admit that I, too, was initially skeptical about whether a live-tweet wall could facilitate meaningful interaction among students in a class or attendees at a conference.)

Jim, you asked: “do you expect your students to log in under some recognizable form of their name, or do you permit pseudonymous or anonymous postings?” I expect students to use a recognizable form of their name (this is how they get credit—my TA reviews the postings after class). You also asked: “My chief worry about using a projected stream of comments in the classroom is the fear of the class getting out of control. … Do you have concerns about sexist or other offensive comments on the screen?” I agree that this can be a concern, but I don’t think it is a reason to avoid using live-feed discussion. One way I’ve attempted to avoid this is by having students post in a recognizable form. I also explained to students at the outset that I expected their postings to reflect how they want to be viewed as professionals.

Stephen, I agree with much of what you’ve written, but want to raise one question, and then also push back a bit on a couple of your points. First, you seem to suggest that social media isn’t the sort of technology contemplated by the drafters of the Model Rules revisions. (You said the revisions “were intended to ensure that lawyers stayed aware of changes in technology when those changes might improve client service or reduce cost. Also included was a caution about taking steps to protect information conveyed electronically. Teaching students about how to use social media…is of a different order.”) But I see social media as precisely the sort of technology innovation that has begun and is developing into platforms that will improve client service and reduce costs, provided that we are mindful about confidentiality/privacy concerns. For example, I've recently learned about a new social media provider offering a Facebook-like interface with online, virtual workspaces for attorneys (and judges!) to handle matters that typically require physical presence in a conference room or courtroom. And a lawyer might improve client service/reduce costs by tweeting updates to followers on relevant changes in law rather than doing this with mailings, etc. Do you mean to say that social media isn’t what you (and the drafters) believe is covered under “technology” in the rule revision?

Second, I don’t see what I’m doing as trying to make PR trendy—social media is here to stay. I do emphasize to students that this isn’t just about Twitter—they also need to be thinking about whatever tech innovations come next that can be adopted into their law practice. Twitter is just one example. On the concern that communicating in 140 characters is somehow suppressing students’ training as advocates, let me raise a counterpoint by sharing an exercise I use in my Lawyers & Ethics class (one passed on to me by Professor Jamie Abrams, who uses it to teach written advocacy). There I ask all students to convey in exactly six words how they are feeling about embarking on their law career. The six words premise is based upon Hemingway’s shortest story ever: “For sale: baby shoes, never worn.” There is power in brevity, whether six words or 140 characters. I’m not saying we should substitute tweets for talking; but I am saying that in a world where our clients are growing up using Twitter, or whatever social media platform comes next, our students need to be able “talk law” in many different ways—whether in a 30 page brief, or a 140 character tweet.

Does every law professor need to teach with social media? No. But I’d suggest that whether the drafters intended it or not, social media is a kind of technology that lawyers need to understand.

[Stephen Gillers]

I do not think that social media, along with other technological innovations, are excluded from the developments that lawyers need to be aware of, the better to serve clients. Of course, for many lawyers, it will help not at all; for others it will facilitate service or attract clients.

The three categories I see are (a) teaching awareness of all manner of technology and how developments may or may not make service to clients more efficient, less costly, (b) teaching awareness of the danger of electronic communications in all its varieties -- e.g., to confidentiality duties, to avoid unintended creation professional relationships, etc.; and (c) use of technology in class to teach, where there are certain benefits but also certain risks.

PR classes should do (b).

With regard to (c), what I did not understand was the benefit of Twitter or micro-blogs; as distinguished from, e.g., the use of discussion boards that allow dialogue outside class.

And while the knowledge in (a) may be useful in law practice, is it germane to teaching the law regulating lawyers? That is, why does instruction about the available social media and how to use them in practice (as opposed to the regulatory risks associated with their use) belong in a PR class as opposed to any other -- or in a clinic? Or in law school?

That said, I realize the need for "magic" to keep the class engaged, especially perhaps in a class they did not choose to take but were required to take.

[James Milles]

This afternoon I introduced TodaysMeet.com in my Legal Ethics class. I didn't project it on screen (there's only one screen in that classroom), and I encouraged students to post anonymously. So far there was just one comment ("Please ask the students at the front of the room to speak up"), but they seemed interested in using it in the future.