In tomorrow’s issue of The National Law Journal you can read a "Special to ..." article called "Competitive Intelligence: What are lawyers' limits?" written by the marketing partner of the Texas law firm Winstead. She proposes that it's time for state bars to start providing regulatory oversight of lawyers' and law firms' competitive intelligence activities.
The article expresses the opinion that lawyers and law firms may not have sufficient judgment, ethics, and morals (yes, morals—read the article) to develop and use competitive intelligence. Don't miss the parts about stalking prospects' children's MySpace pages and Sunday School classes to gain mysterious business development advantages.
Because context is always important, it’s worth noting that the author, who is her firm’s marketing partner, appears to be the only lawyer at her firm who does not permit her photograph to be published on the firm’s Web site.
Now on to the article itself.
The author was apparently motivated to write this article in part after reading a basic CI primer I wrote that was published in the March 2008 issue of the ABA's Law Practice magazine, "How to Create and Use Competitive Intelligence: 45 Tips for Law Firms." What's not clear from the The NLJ author's article is what, if anything, about the 45 Tips piece raised an alarm.
The author comes a bit late to the CI conversation, stating that “At least one vendor offers a software program that compiles legal, financial and business content combined with tools to create informative and tactical reports.” Actually, off the top of my head, I can think of more than 30 vendors providing this kind of content to law firms.
She then urges that lawyers and law firms refrain from using all information that is publicly available to build competitive intelligence, implying it’s not only unsporting, but unethical:
CI research on a target client can be generated legally, yet yield information that a target wants to keep confidential: the value of homesteads or mortgages, payments and standings, criminal history, religious affiliations, school affiliations, civic affiliations, taxes and more. It is a murky area requiring more attention, and many disagree on what is ethical and what is not.
After worrying about the shadiness of those who troll MySpace sites, she goes on to pose one of the oddest key intelligence topics I’ve never thought of before: “Should cancer patients receive letters from estate planners because lawyers can buy wig vendors' client lists?”
To which, after ROTFL, I loudly answer, “Of course not!” I could also pose, as could anyone with a creative streak and time on their hands, about 400 other horrifying, hilarious, and completely bogus red herring key intelligence topics no law firm in the world would ever investigate. I must also admit that I had no idea lawyers could buy wig vendors' client lists.
She then suggests that the new influence of competitive intelligence in law firms may lead to the weakening of lawyers’ moral fiber:
It seems clear to me that the above so-called moral questions have confronted human beings (including lawyers and investment bankers and husbands and wives and lovers) ever since the appearance of the cocktail party. But by mentioning them here, the author seems to suggest that law firm advertising really was the gateway drug that has now led us to these queasy CI crossroads.Experts agree it is unethical to misrepresent one's status or position to obtain information. But what about failing to identify yourself in a public place when others around you are talking about a competitor's proprietary information? Is an act of omission (failing to identify yourself) in the gathering of CI unethical? Is taking advantage of someone else's mistake unethical? What about misrepresenting intent versus identity in gathering CI (saying you are conducting a legal industry survey when you are really only interested in gathering CI regarding a particular subject)? These questions highlight the dichotomy between moral conduct and current ethical
standards.
The article concludes with a call that “law firms should take the lead” in getting state bar associations to start regulating lawyers' and law firms' CI activities:
Ideally, as they have done with advertising, each state's bar association or other regulatory body should create a code of ethical conduct relating to the generation and use of CI. In the interim, each law firm should consider the creation of its own clear ethical standard or perhaps, at a minimum, require their professionals to join SCIP and adhere to its ethical code.
Undoubtedly, if individual lawyers and law firms are not proactive in this regard, then at some point in the future, the public disclosure of one lawyer's offensive CI research methodology or use will cause the profession to address these issues publicly — but only after the reputation of the legal profession has been damaged once again.
Here, finally, is something I agree with. Anyone who works in a CI position should join SCIP, thereby requiring them to agree to SCIP’s code of ethics. I and many others (thousands of us working in CI, actually) have said and done this for years. And to any law firm that wants to go SCIP one better, I say, Go for it!
But surely getting state bar associations involved to oversee law firms’ CI activities is overkill, to say the least. And even if they did get involved, how would they oversee lawyers’ and law firm employees’ participation and behavior at:
- Facebook and other social networking sites?
- Blogs?
- Parties, restaurants, and ballgames?
- Airports?
- The steps of churches, synagogues, and mosques?
More problematic is the question of who and why and under what circumstances someone would decide to file a competitive intelligence grievance? And what evidence would constitute proof of a CI offense?
At the heart of this article is a fully expressed apprehension about the financial and societal transparency that information aggregators and the Internet now offer anyone with basic research skills. The article also grieves, understandably, at the erosion of privacy some of us who are older (including me) used to enjoy.
But although I appreciate and sympathize with these discomforts, I cannot support the conceit that lawyers and their employees will behave professionally and appropriately only when their good taste, common sense, and morals are even more highly regulated by local state bar associations.
I look forward to everyone’s comments on this one.
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4 comments:
Ouch! Did Winstead's marketing partner think she was going to survive her rant unscathed? A little competitive intelligence would have told her that Ann Lee Gibson was in the mix. You can be certain a conversation beforehand would have helped Winstead's partner temper her tirade and live to fight another day.
Ann this is paranoia indeed! Where is personal responsibility in this article?
Reputation management is more important than ever in a digitally connected world but the concept is not new. If you grew up in a small town, went to high school, or lived on campus in college you learned that privacy was a skill you had to master.
If you are looking beyond a reasonable expectation of privacy then the best defense is a good offense. Before creating more bureaucracy, let’s practice using more discretion in our public and private lives.
AAARenee’s 6 Ps of Online Social Networking
1. Persona – Which representation of you are you? Professional? Personal? Hybrid? Fictional?
2. Privacy – What are the settings available and which information needs filtering?
3. Postings – What do I have to say and how much will I edit?
4. Placement – Which sites get my time (a totally nonrenewable resource) online and why?
5. People – Who is a fitting addition to my network and should see this side of me?
6. Police Yourself – Setup a Google alert on yourself and monitor the online conversation. Consult with a SEO expert if cleanup is needed.
The article poses many questions that expose the author's level of expertise in CI. I want to thank her for making my job much easier.
CI/MBA/JD/MLS
This topic continues to get attention over at 3 Geeks and a Law Blog (http://geeklawblog.blogspot.com) where Greg Lambert worries about lawyers’ ethical limits. He takes the middle road, opining that “…the shifting of this ‘code of CI ethics’ to a regulatory body such as the state bar association seems to be a little bit of an overreaction at this point.” But he also thinks, “It wouldn't hurt for firms to have a CI Ethics Code for their organization and make it understood that CI professionals should be very conscious of the firm's ethical line, and make sure that it is never crossed.”
This conversation is also getting ink on the home page of the Society of Competitive Intelligence Professionals (www.scip.org).
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