Before You Think About Killing Lawyers, How About Educating Yourself and Them?

Here I was in the middle of a blog post about fair use on Pinterest when up on my Twitter feed pops the blog post Kill All The Lawyers by Todd Defren.  I like Todd’s posts but this one needed a response.

howard-beale

“I want you to go to the window and open it! Because it should be open! Closed windows make no sense! If I wanted a closed window I would’ve made a wall!”

First, I get that this was a vent by Todd because he’s probably dealing with a difficult attorney.  I’ve been there (dealing with them, or maybe some clients who thought I was one although I try hard not to be).  But Todd is too smart to use this Shakespeare line.  The infamous line about killing attorneys comes from Henry VI, Part II and is delivered by a supporter of a rebel who wants to create total chaos and then claim the crown for himself.  The line is actually Shakespeare praising attorneys for defending the rules and laws that make a civilization possible.  But that point gets lost on, oh, just about everyone who hears the line but hasn’t read the play.  So, Todd, instead of reading the play (but you should, it’s a good one) then just know you’re taking the quote out of context.  It would be like quoting the Howard Beale speech from Network thinking that he was mad that the window was closed in the first place.

But the majority of Todd’s post is about running into difficult attorneys over social media issues.  That’s a tricky one to address, but let me give a few bits of advice for you non-lawyers who may be dealing with attorneys on social media issues.

1. They may not be involved in social media.  That is not their fault, unless it’s their primary practice.  But you should take that as an opportunity to teach them about social media.  Lawyers, for the most part, love to learn.  And social media is a topic that virtually all lawyers have heard about even if they don’t know a tweet from a pin.  So show them what it is you want to do, show them the platform, show them some of those slick infographics about the benefits to a brand or the explosion in usage.  Having information is never a bad thing.

2. They may know something you don’t.  Now, that isn’t enough by itself–they should tell you what they know, or enough so that you know why there may be an issue or why they are saying no in the first place.  But I’ve faced plenty of times where I’ve had to say no to a client but I’ve explained why we can’t do something.  Sometimes it’s a tricky legal issue, sometimes it’s a simple issue being presented by a client who hasn’t thought things through (yes, I’m being generous).  Those are all opportunities for education as well.

3. There is almost always a solution.  If your lawyer just tells you no and walks away, get another lawyer.  Instead, lawyers (especially in-house ones) should be able to give you alternatives.  I’m not saying you’ll like them all, but hopefully you’ll start to understand the issues the lawyer is trying to avoid and be able to come up with a solution together.

I will say there are things in Todd’s post that ring true, especially about the speed of reviewing content for social media.  It’s tough to say if Todd’s complaint about reviewing a tweet is appropriate or not because there are a lot of factors–is the client in a regulated industry, was the tweet part of a registered promotion (like a sweepstakes), did it involve an issue the company had recently been sued over, etc.  But any lawyer practicing in social media will be able to work with their clients to figure out which posts need reviewing and which posts, if they follow certain guidelines, can be done immediately.

Finally, Todd mentions that in his experience social media lawyers are getting worse.  I can’t speak to Todd’s experience, but in my own experience I think things are getting better.  Lawyers are very interested in the topic–I’ve spoken at conferences filled with eager attorneys wanting to know about social media legal issues.  When I’ve offered classes to my own legal department I’ve been amazed at the number of attorneys who wanted to learn about the subject by taking time away from their other work.  But I think that’s encouraging the legal groups are starting to identify the legal concerns in this emerging field.

Many of the legal concerns are not new, instead we have a new arena in which the issues are taking shape.  No, it’s not the wild, wild west–I hate that analogy and I’ll blog why later.  But we are seeing the intersection of law and technology subtly impact each other and that’s fascinating.  That is a collision of two powerful forces so it’s understandable that some strong whirlpools of churn can spin off, trapping Todd and others occasionally.

But instead of overreacting with an out-of-context Shakespeare quote, let’s try to educate each other about the concerns and make all of our lives easier.

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5 Comments

Filed under Commercial Activity, Consumer Protection, Social Media Lawyers

5 responses to “Before You Think About Killing Lawyers, How About Educating Yourself and Them?

  1. X-posted from my blog:

    Ryan, the speed and depth of your reply left me a little breathless. Great stuff, thank you.

    As I noted on Twitter: my sincerest gripes are “speed” + “genuinely clueless and deeply uncurious obstructionism” … FWIW the PR/Social team, in some cases, has zero facetime to make its case. The lawyers at some big brands are faceless, nameless corporate folks who make pronouncements vs. engage/discuss/debate with their marketing teams (and partners).

    • There’s no doubt that a gap exists between good lawyers and bad lawyers in any subject, including social media. The trick is finding out if these lawyers are being bad because they don’t know any better (or can be taught) or they’re just lawyers who don’t care.

      But you’re better armed knowing as much as you can about the attorney’s concerns–then if it turns out they’re just non-responsive or unwilling to learn you can present that information to your client and they can act (or sigh deeply) accordingly.

  2. Since I commented on Todd’s post, I’ll give you some comment luv too!

    Thank you for clarifying the Shakespeare quote. Most people do get it wrong. Then again, many people get Shakespeare wrong in general.

    I appreciate your defense of my profession. I’m glad someone recognizes that lawyers, just like everyone else, are new to social media. Social Media Law doesn’t really exist, except for a few small areas where laws were specifically created for the online space (for example, DMCA).

    Thank you for saying that if your lawyer just says ‘NO’ then get another lawyer. That’s my biggest problem with lawyers, they like to say no. But in our defense, transactional lawyers (as opposed to litigators) don’t like to be wrong. Because when transactional lawyers are wrong we then hear it from the litigators who beat on us for allowing our client to do something so dumb in the first place. It’s an odd relationship.

    In general, though, few experienced lawyers are in the social space. Their practice and lives just never made the transition. All that means is you have to find another lawyer. Just as you wouldn’t hire an estate attorney to defend a criminal, business people should not be seeking counsel for social media legal questions from a lawyer who doesn’t know and understand the space.

    Appreciate the reply to Todd’s rant.

    And, like the comment on his blog, you get this too:
    Disclosure: I am a lawyer. Nothing in this comment is to be considered legal advice nor does it create an attorney/client relationship.

    • Great comment, Sara. I’m still on the fence on deciding if attorneys need to know enough about social media to apply it to their practice or if it’s becoming an entirely new body of law. I’m still leaning towards the former–while I believe this is a communications revolution I don’t believe it requires a legal revolution as well. Although it’d be nice to force a bit of evolution into some areas like copyright.

  3. Pingback: Top 10 Things Social Media Professionals Need to Know When Working With Lawyers | SoMeLaw Thoughts

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