Patrick Berry, The Levison Group
I’m currently out of town attending a legal conference. Unlike some of my colleagues, I’ve actually been looking forward to this event: there’s a slate of interesting speakers, I’ll see some old friends and, importantly, there’s an open bar. I arrived a few minutes early to the first panel discussion and grabbed a seat. The panel featured some highly regarded attorneys, so the talk was pretty well attended. As the panel began, the lights dimmed slightly so that the PowerPoint presentation would be visible for those of sitting in the back.
That’s when it happened: countless attorneys immediately whipped out their phones and started browsing the web — emails, news sites, Facebook, Twitter. I even saw one attorney online shopping on his iPad. The lit up cell phone and tablet screens strewn across the dimly lit auditorium looked like lighters in the crowd of a Bon Jovi concert — that is, if you replace Bon Jovi with some middle-aged attorneys and the screaming baby boomers with hunched, eye-straining, silent baby boomers. Also, I don’t think anyone was hoping for an encore performance, despite the prominence of our esteemed panelists.
It was a depressing sight. Not necessarily because no one was paying attention to the speakers — lawyers are well accustomed to being ignored. Rather, it struck me how we’ve all become so addicted to our smart devices, and specifically to browsing the web. As a group, we couldn’t avert our eyes from our mobile devices long enough to even get through the speaker introductions. (Curiously, though, the crowd appeared fully attentive when the moderator gave instructions for receiving CLE credit following the presentation.)
After decades of being accused of being technologically ignorant, lawyers, on the whole, are no longer luddites. Attorneys have increasingly begun incorporating the internet and everything “e-” (e-commerce, e-marketing, etc.) into our practices, in part so that we can keep pace with our clients and their ever-changing business models. We’re expected to always have our smartphones handy and connected to Wi-Fi, lest a client can’t get a “quick” legal question answered at 9:00 p.m. on a Wednesday. The world has changed and, of course, lawyers need to change with it.
As a “millennial” — and as an adept user of my internet-connected smartphone and tablet — I’m not necessarily averse to this shift toward technology. But I also recognize the myriad pitfalls that await unwary lawyers who stray too far into this brave new world, and it seems clear that the internet will only become a more perilous place for both attorneys and their clients as time goes on.
For example, consider a recent Utah Court of Appeals case, Spencer v. Glover. In that case, Glover fired Spencer as his attorney and then left a scathing online “Yelp” review to detail Spencer’s legal ineptitude. Among other jabs, Glover’s review referred to Spencer as the “Worst ever” attorney. Spencer sued his former client for defamation, among other claims. Part of Spencer’s (unsuccessful) argument was that he was not, in fact, the “worst ever” lawyer because he had 25 years of experience as an attorney and had never been disciplined by the state bar. In his mind, he couldn’t be the “worst” attorney ever because “others, who have received professional discipline, must be worse than [him].”
The court quickly dispensed with Spencer’s argument: “worst ever” represented Glover’s subjective belief and amounted to mere “rhetorical hyperbole” that no reasonable reader would interpret in a strictly literal sense, not an actionable claim for defamation. While I don’t think this case made much of a meaningful contribution to defamation jurisprudence, I think there’s a lesson there nonetheless: while it’s usually not a good idea for an attorney to sue a former client, it’s always a terrible idea to sue a former client and make it part of your case that you aren’t the worst attorney in history. Also, think twice before starting an online Yelp page that anyone can freely post on.
Attorneys face pitfalls online even when they aren’t ticking off their former clients. For example, as an M&A attorney, I’ve become hyper aware of a new trend among sophisticated hackers in which the bad guy employs e-trickery to intercept electronic money wires as the parties are concluding their closing. As one can expect, when the $10 million never hits the intended bank account, people start asking questions.
Similarly, I’ve heard of lawyers succumbing to phishing campaigns in which an overseas individual asks for the lawyer to help prepare a “purchase agreement” for an international acquisition that’s been all but finalized (the individual just needs a “scrivener, yada yada”). At some point, the “client” asks the lawyer to advance some funds for “export fees.” Once the advance is made, it’s no surprise that the lawyer never hears from the client again. One useful tip to avoid getting scammed online: the client should be paying you, not the other way around.
Our clients face many of the same, or greater, hazards. I once had a client who had been on the wrong end of a baseless, malicious Facebook smear campaign, which had really started affecting his business. Aside from getting the posts removed, there wasn’t a whole lot the client could do in the situation (see Spencer v. Glover, above, if you don’t believe me). It turns out cyber bullying is a problem for small business folks as well.
So, what’s the lesson here? I don’t expect any of you to retreat from, or even decrease, your internet activity; I certainly don’t intend to. But it would be prudent to exercise a bit of caution and skepticism when logging on, for your and your clients’ sake. That said, I’m sure most of you will be undeterred by my warnings, plowing full-steam ahead into all the new and exciting corners of the internet. So, I’ll offer one final piece of advice: when you’re attending an out of town conference, grab the free Wi-Fi information when you check-in so you don’t receive an angry text from your wife informing you that you’ve used up your entire monthly data plan checking your email and refreshing your social media feeds while you sat through another seminar.
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Under Analysis is a nationally syndicated column of the Levison Group. Contact Under Analysis by e-mail at comments@levisongroup.com.
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