by Brenda Hill | October 28, 2013 2:28 pm
There has been an argument of attorney advertising ethics since the Supreme Court opened the doors for attorney advertising back in 1977 (Bates v. Arizona State Bar 433 U.S. 350). To this day, many senior partners feel resentment toward any kind of advertising, even to the point of resisting the use of websites for many years. Just a few short years ago, many attorneys thought that having a website was optional. Today many consider working without a website to be “business development suicide.”
With the rise of social media, the legal profession is again facing conflicting opinions on social media’s place, its rules of use, and the ethics involved in participating. What appears to be different from the initial wave of attorney advertising of the after the 1977 ruling, and even different from the Internet wave that first hit in the 1990s, is that many attorneys are rushing into the social media space rather than avoiding an online presence.
Social media has the lure of being not only a great source of legal and case-specific research, but also as a business development tool. To begin to understand the minefield of social media ethics, it’s important to go further back to understand just how social media has transformed our way of communicating online.
The first wave of the Internet, what might be called “Web 1.0”, was not so much a new form or communication, but rather a new media platform. For many it was simply another “place” to post information. When the first websites came out, they basically mimicked ads, brochures, newspapers, and even broadcast programs in style and content, only they were accessed through the Internet. Law firms, if they had websites, typically posted general information about the firm, its practice areas, and profiles of the key attorneys.
Web 2.0 and social media is different is because actually changed the way we communicate via the Internet. Most importantly, what was one-way communication online has become two-way communications and conversations. Formerly companies, brands, media companies, and yes, law firms controlled the flow of information on their websites. Now viewers and users have easy access to more information as well as the ability to engage in conversations or post their own information.
State bar associations have been rushing to keep up with social media, and the first wave of case law has been hitting the courts. In an effort to create some kind of national standards, the American Bar Association’s Commission on Ethics 20/20 has just released its initial proposals relating to lawyers’ use of technology based client development tools. While not likely to be adopted until fall of 2012, the proposals are seen as a general indication of where the ABA sits on several keys issues.
The Commission is seeking to clarify the difference between a “potential” client and a “prospective” client. The Commission’s proposed wording of Rule 1.18 (a): “A person who communicates with a lawyer about the probability of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter us a prospective client.”
While the term “potential” client has not been fully explained yet by the commission, it is believed to indicate the universe of all public persons.
The general idea here is that use of advertising, websites, and social media are okay when directed at “potential” clients. This becomes important in light of the ABA rules on advertising, whereby the ABA identifies a difference between “communication” and “solicitation.”
Advertising Rule 7.3 (a) states “A lawyer shall not by in-person, live telephone or real-time electronic contact, solicit professional employment from a potential client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain” with a few exceptions, such as contact with another attorney, family member, or has a prior professional relationship with the lawyer.
The Commission seeks to define communication as less targeted than solicitation, such as advertising toward the general public rather than a single person or entity. So general advertising, Internet advertising, or responding to requests for information, even when automated via the Internet, are considered communication, and not solicitation, when targeted to the general public.
Another area addressed by the Commission is recommendations, but unfortunately it did not address the most common one of the day, the LinkedIn recommendation. Rule 7.2 (b) currently prohibits a lawyer from giving anything of value for recommending a lawyer’s services, with a few exceptions. The commission noted that many law firms are now using websites and social media, and that recommendations are becoming more of an issue. On note of the Commissions was the use of promotional t-shirts, and offering a prize to anyone posting a picture wearing the shirts. For the moment, the Commission has indicated that the wearing of a t-shirt does not inherently constitute a recommendation, but this is an area the Commission will be looking to address more carefully before adoption of rule changes.
Several social media areas have become “hot spots” for attorneys using social media. Here’s a brief survey of some of these, and while they may have originated in other states, many social media ethicists and legal journalists believe these to be the main areas attorneys need to stay current on no matter what state an attorney is practicing in when engaging in social media activity.
Social Media As Advertising
The trend in classifying social media communication is social media is governed by advertising rules and regulation. As such, it’s prudent to review not only The State Bar of California rules and regulations, such as Rules of Professional Conduct Rule 1-400 on Advertising and Solicitation, but also the California Business and Professions Code from the Legislative Counsel of the State of California.
While some advocate “Advertising Material” disclaimers, others have adopted more simplified disclaimer statements. ABA rules require this for some advertising applications, As law in this area emerges, it appears prudent to assume that social media activity is very likely to be considered advertising, and therefore attorneys should use the same cautions as any other public communications, such as websites, advertisements, business materials, brochures, etc. As basic guidance, this includes general tenets such not making untrue statements, not presenting matter in confusing or deceitful ways, not omitting necessary facts, using incorrect titles for “specialization,” or failure to properly disclose the nature of the communication. While disclaimers are not fool-proof, it is better to have a well written one than not at all.
Unauthorized Practice Of Law
As simple as it seems to not practice law online in a social media context, this appears to be a slippery slope. Attorneys active in blogging and social media “Q&A” sites, especially in back and forth communications, can inadvertently create the possibility of attorney-client relationships.
Particular attention needs to be paid to two-way communication, such as blog comments, Q&A areas, and chatrooms. Depending upon the information that is shared, attorneys can run the risk of chatting or connecting with clients or potential clients. One tactic being used by some legal bloggers is to either not allow comments, or if comments are allowed, they are not responded to by the blogger, allowing for information and opinions, but not ongoing conversation.
Location & Geography
With the Internet, there is no geographic protection. Conversations by attorneys online in the San Fernando Valley can be shared with people across the country and even internationally. When discussions or conversations emerge, they may and will very likely cross geographic boundaries, and possibly even resulting in unauthorized practice of law in a state in which you are not admitted to the Bar.
On the flip side of this issue is another potential location problem, only this time it’s too much knowledge. Recent cases have come to light where attorneys posted on Facebook, Twitter, Yelp, Foursquare, or other sites that identified their locations through GPS devices. In some cases, this has been interpreted as violation of confidentiality.
Blogs Vs. Websites
Is a blog a website? In common usage, a firm’s website is place that holds information about a firm, its practice areas, and biographical information of attorneys and personnel at the firm. A blog is a type of website, typically one by which the blogger disseminates news, information or opinion on a frequent basis. A blog can be a part of a firm website, or separate.
With requirements to archive legal communications, law firms have begun using blogs more actively for news feeds, because many of the popular blog platforms, such as WordPress and Blogger, have automatic archiving. Using blogs has made this easy and inexpensive.
The biggest problem in blogging is that some attorneys have used blogs as soapboxes, and offered public opinions in areas that have later come to cause problems with clients or cases. The use of blogs to relay news or information without comment is becoming a more common use, even to the point that many newsfeeds on legal websites actually use blog software, though opinions and comments may not even be featured as blog content. A suggested approach is to treat your blog as any other official communication, avoiding confusing, misleading, or false claims.
Social Media As Research
Social media has been a great new research resource for many attorneys. The ability to connect with large numbers of other attorneys and non-attorneys very quickly has made it one of the primary uses for many attorneys.
Trouble has arisen for some attorneys who have sought to acquire information through less than ethical means. Cases have emerged where attorneys anonymously conducting questioning via social media. Courts have not had a favorable view of this.
The most important point to put into practice in social media is that if you’re unsure of usage or ethics, contact the state bar association for clarification. Using caution is definitely recommended when embarking on new social media “campaigns” or efforts. By minimizing exposure to some of the areas identified here, attorneys will be able to maintain a prominent social media presence while staying clear of several pitfalls that social media, even in its infancy, has placed in the legal profession’s way. •
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