Start Spreading the News! ...Or Should You?
Social media provides countless benefits to legal professionals from the solo practitioner to mega firms. Usage can allow a lawyer to instantaneously connect to potential clients in a less formal and more economical way. According to the most recent ABA Legal Technology Survey Report, respondents reported many professional reasons for participating on social media sites, with career and client development being the top two drivers(1). Among all the networking sites, LinkedIn and Facebook were the most popular with lawyers(2). However, before pressing that “connect” or “friend” button, one would be prudent to review the Model Rules of Professional Conduct 7.1-7.4 to ensure the ethics committee members do not become “friends” as well.
Although platforms such as Facebook, LinkedIn and Avvo are fairly new, the ethics rules that apply to them are not. The Model Rules of Professional Conduct that govern the traditional methods of marketing, such as newspaper and television advertisements, also apply to these modern channels. Because social media networks are so easily accessible through iPhones, iPads and other handheld devices, lawyers may not necessarily realize they are advertising when they are blogging or posting comments on their newsfeed. Is there really any harm in asking a friend to post a good review on behalf of the firm to help drum up a little business?
The Model Rules of Professional Conduct Rule 7.1-7.4 govern information about legal services regarding communication, advertising, solicitation and communications of fields of practice and specialization. The rules generally prohibit “false or misleading” statements, including statements that are likely to create an unjustified expectation about the results that one can achieve(3). This rule applies whether communication is on paper or on-line. So, with sites like Facebook, LinkedIn, and Avvo that offer the opportunity for client reviews and testimonials, lawyers need to be careful about what is posted on their profiles. Because the rules generally prohibit setting unjustified expectations about results, attorneys should make sure those reviews do not contain references to specific jury award amounts or promises that the attorney can get the same great results for other clients.
Be mindful that legal ethics regulators across the country are beginning to pay close attention to whether lawyers’ advertising and marketing through their on-line profiles violate the Model Rules.
In fact, a state bar opinion recently examined an attorney’s on-line postings to determine whether certain comments would be subject to the professional responsibility rules and standards governing attorney advertising. The committee addressed several specific remarks including one that stated, “Won a million dollar verdict. Tell your friends to check out my website!” They determined that this post was a violation of the ethics rules because the words “Tell your friends to check out my website” conveys a message or offer “concerning the availability for professional employment.” Since the attorney is asking the reader to tell others to look at her website so that they may consider hiring her, this communication, in accordance with the Model Rules, must contain the word “Advertisement”(4). Thus, a short comment giving oneself a “pat on the back” for a recent success could land a lawyer in trouble. Also remember that although many states follow the ABA Model Rule standard, some states impose a stricter requirement when it comes to advertising and communication. For example, the Arkansas Rules of Professional Conduct maintain that a communication is false or misleading if it contains a testimonial or endorsement(5). Therefore, one should review the applicable state Model Rules to ensure compliance in the relevant jurisdictions.
The immediate access and relaxed setting of social media sites makes it easier for lawyers to unknowingly violate the rules of professional conduct regarding legal services. A lawyer may not necessarily think that sending that “friend of a friend” a Facebook message advising of their services as traditional solicitation. It is just a friendly, informational message, right? Well, the Model Rules define solicitation as targeted communication initiated by a lawyer that is directed to a specific person and can reasonably be understood as offering to provide legal services(6). Therefore, a lawyer cannot use real-time electronic contact, such as instant messenger or Facebook messenger, to contact prospective clients when a significant motive for doing so is pecuniary gain(7). Consequently, a Facebook “friend request” or LinkedIn “invitation” that offers to provide legal services to a non-lawyer may be considered a prohibited solicitation.
Model Rule 7.4, which pertains to fields of practice and specializations, can unintentionally be violated on social networking sites. Although a lawyer is permitted to state that they practice in certain fields, an attorney cannot claim a specialty unless it falls within the exceptions for admiralty or patent law(8). Networking sites, particularly LinkedIn, makes it easy for lawyers to violate this rule because other people, unsolicited, can endorse a lawyer for certain skills. For instance, it is possible for someone on LinkedIn to endorse a lawyer for skills in areas in which they do not practice. If they left these skills on their profile page, it would be a misrepresentation of their expertise. Do not forget that it is the responsibility of the attorney to police their own on-line profiles. If an endorsement or recommendation is not accurate, it should be removed.
Although social media networks provide so many fantastic benefits, the instant and easy accessibility may not leave time for caution or reflection before posting. One should avoid posting or blogging statements regarding results obtained on behalf of clients to avoid unjustified expectations. It is also important to monitor one’s own profile for accuracy, including endorsements and recommendations written by other “connections”, “followers” or “friends” to avoid misrepresentations. Keep in mind– attending a social gathering on a boat or being in possession of Grandma’s top secret brownie recipe does not confer one a specialty in admiralty or patent law! When in doubt, consider how an on-line post would translate as a traditional newspaper or television advertisement and adjust the content accordingly.
1. ABA Legal Technology Survey Report, 2015 (collected responses from almost 1000 lawyers from all over the US, ranging from solos to firms with more than 500 lawyers in diverse practice areas).
2. ABA Legal Technology Survey Report, 2015.
3. Mod. Rules Prof. Cond. § 7.1.
4. The State Bar of California Standing Committee on
Professional Responsibility and Conduct Formal Opinion
5. AR Mod. Rules Prof. Con. § 7.1(b).
6. Mod. Rules Prof. Con. § 7.3(a).
7. Mod. Rules Prof. Con. § 7.3(a) (A lawyer shall not by in
person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer).
8. Mod. Rules Prof. Con. § 7.4 (d) (A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified the communication).
By Erin McCartney, Esq.
Erin is the Risk Management Lead at Attorney Protective. When she isn’t busy saving lawyers from malpractice claims, she can be found coaching her children’s sports teams and hopelessly attempting to be the next Serena Williams.
...it is the responsibility of the attorney to police their own on-line profiles."
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