Ethics Committees and the Bystander Effect

Ethics committees across North America are, as always, in the process of examining issues of great importance to lawyers in the US and Canada. As part of process of establish new ethics opinions and rules, ethics committees typically hold hearings or publish proposed opinions for comment, seeking input from practicing attorneys.

Unfortunately, these hearings and requests for comment are often met with silence from practicing attorneys. Vendors and other interested parties respond in force, but the group that will ultimately be most impacted by ethics committees decisions have, apparently, nothing to say.

For example, only one practicing lawyer signed up to testify at the ABA Ethics 20/20 Commission’s hearing on the ethics of cloud computing. Similarly sparse responses from practicing attorneys were received by the North Carolina State Bar through its request for comments on a proposed Formal Ethics Opinion on Cloud Computing.

The lack of response to these hearings and requests for comments isn’t, I believe, due to apathy, but is a manifestation of the bystander effect. The phenomenon – where large groups of people are less likely to take action in an emergency situation – takes hold when individuals all assume someone else is doing something about a problem. The end result, often, is that everyone ends up doing nothing. Worse, the probability of an individual taking action is inversely proportional to the number of “bystanders”, so a call to the over 1,000,000 lawyers in the US to participate in an ethics hearing is, paradoxically, much less likely than a call to a smaller, more focused group.

Carolyn Elefant is hoping to battle the bystander effect, and has issued a call to action regarding the ABA 20/20 Ethics Committee to her readership. Carolyn will also be running a teleseminar to provide a briefing on the technology issues being studied by the ABA 20/20 Ethics Commission. The fundamental problem with the lack of participation by practicing attorneys, Elefant points out, is “those who will be making recommendations on proposed rules to govern practicing lawyers have never set up a Facebook page, never participated on Twitter, never run a practice and used tools like DropBox or BaseCamp or RocketMatter or Clio to keep in touch with clients without added administrative costs, never endorsed a colleague on Linked-In or Avvo.”

Do your part to break the inaction caused by the bystander effect, and respond to ethics committee’s calls for opinions and input from practicing attorneys. If you’re assuming someone else is, chances are they’re not.

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