Social media is everywhere. It is no longer solely a forum for personal communication. Instead, social media has grown into an essential marketing tool for companies across the globe. Social media gives companies – big and small – the opportunity to reach massive audiences with the click of a button (or tap of a finger).
Lawyers, unlike many other working professionals, are bound by strict ethical codes of conduct when it comes to marketing and communicating with non-lawyers. The explosion of social media marketing has caused many attorneys to wonder how they can successfully utilize these platforms to grow their business while still adhering to the Rules of Professional Conduct. The Models Rules of Professional Conduct and the Illinois Rules of Professional Conduct provide guidance for attorneys who are interested in using social media to market their business and engage with the public.
Communicating With the Public
Attorneys must be wary of who they form “friendships” or “connections” with on social media platforms. It is important to evaluate who the intended recipients of a message are and why an attorney is engaging with them. Sending an invitation to connect on social media which appears to offer to provide legal services could potentially violate the Illinois Rules of Professional Conduct in regard to prohibited solicitation.
Attorneys who use social media platforms such as Facebook, Twitter, Instagram, and LinkedIn may have some control over the audiences they reach and communicate with. However, no control mechanisms are absolute and attorneys must be wary of the potential for prohibited communications. Rule 4.2 of the Illinois Rules of Professional Conduct prohibits an attorney from communicating about “the subject of representation” with someone they know to have legal representation.
This prohibition extends to agents that may act on an attorney’s behalf, including paralegals, private investigators, secretaries, and interns. An attorney could, regardless of intent to engage with a represented party, breach this ethical responsibility if they tweeted about an ongoing matter. Attorneys who use social media to engage with the public should do so without touching on the specific legal issues on which they are actively working.
Disclosing Privileged Information
The sanctity of the attorney-client relationship is highlighted by the degree of protection given to privileged information. Attorneys who use social media – or who engage agents to run social media campaigns and accounts – can potentially violate privilege if they are not alert and aware about the information they share. In Illinois, attorneys have a duty to protect privileged information of both former, current, and prospective clients, and must have the consent of such clients to disclose any information about them.
Attorney blogs have become a popular way for lawyers to engage with potential clients and those interested in legal issues. However, lawyers must be careful when choosing the issues they speak about and the information they use in these narratives. One Illinois assistant public defender was suspended from practice for 60 days after he blogged about clients.
In his post, he implied that one client committed perjury. A cursory search of the attorney’s history of representation could yield a list of potential clients that could be affected by this blog. Attorneys who want to blog, tweet, or post about ongoing legal issues they are working on must use hypotheticals and/or get the consent of clients that may be the inspiration for such content.
Direct Marketing Campaigns
The Illinois Rules of Professional Conduct emphasize the importance of utilizing social media and electronic means to engage with the public. Comment  to Rule 4.2 states that “…the Internet, and other forms of electronic communication are now the most powerful media for getting information to the public, particularly person of low and moderate income; prohibiting…internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public.” As a result, attorneys in Illinois are encouraged to use social media and electronic means to engage with the public. However, they must do so in ways that do not violate the Rules of Professional Conduct.
Attorneys are permitted to pay for advertising on social media platforms. However, they are generally prohibited from targeting these advertisements or solicitations to specific individuals. Social media marketing campaigns, including banners and ads, must be aimed at the general public. Attorneys should also refrain from engaging in direct real-time electronic marketing and solicitation efforts.
Testimonials and Endorsements
It is difficult to log onto LinkedIn and other professional social media platforms without seeing recommendations and endorsements for leading professionals in your area. Attorneys must be careful when using social media in this regard. Generally, attorneys in Illinois may not advertise themselves as being experts, certified, or specialists in a field of law. Endorsements or recommendations from social media platforms – including those made by an attorney’s social media connections – should be monitored closely to ensure that the attorney is not improperly classified as an expert.
If an attorney is classified as an expert by an award or certificate issued by an organization, agency, or association, the attorney may use this classification for advertising purposes. However, the attorney must ensure that the reference to the certification is not misleading and state that the Supreme Court of Illinois does not recognize such certifications. If an attorney receives an endorsement or recommendation from a social media platform or user, he or she must seriously consider removing the positive comment. Alternatively, the attorney could install a disclaimer to ensure that any prospective clients understand that the attorney is not an expert in the eyes of Illinois law.
Creating Misleading Expectations
Attorneys who may want to use social media to celebrate past legal victories as a way to engage with potential clients may want to think twice. In Illinois, the Rules of Professional Conduct provide that representations about an attorney’s success in the past may be misleading to prospective clients. If attorneys choose to highlight past legal victories, they must be framed so that a reasonable person would not be misled to create an unjustified expectation that they would obtain the same result if they hired that attorney.
Social media has the potential to connect attorneys with millions of people. This can be great for the growth of a firm, but can also pose some ethical challenges. It is important to thoroughly review the Rules of Professional Conduct and keep abreast of any changes that are made. As social media grows, the Rules will continue to adapt to allow attorneys to engage with the public.
About the Author: Gus Kostopoulos is a Chicago criminal defense attorney and owner of the Kostopoulos Law Group – a Chicago, IL based criminal defense firm.