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 California 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 California 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. Something as simple as sending a friend request to a represented party may cross ethical lines. Rule 2.1 of the California Rules of Professional Conduct explains that “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”
In becoming “friends” with a represented party on social media, the attorney may be able to obtain private information that (a) would typically not be shared by the adverse party and (b) is relevant to the legal issue at hand. This prohibition extends to agents that may act on an attorney’s behalf, including paralegals, private investigators, secretaries, and interns. 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 California, attorneys have a duty to protect privileged information of former, current, and prospective clients, and must have the consent of such clients to disclose any information about them.
Attorney blogs and platforms like Twitter 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. If an attorney were to imply something about a client in a post, 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
California encourages attorneys to tread carefully when using social media, blogs, and other internet resources for marketing purposes. It’s perfectly fine to advertise using social media, however, all ads must comply with the requirements set forth in the California Rules of Professional Conduct. Rule 1.4 applies to “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member of a law firm directed to any former, present, or prospective client….” When a communication is governed by Rule 1.4, it must not violate any of the 16 prohibitions stated within (e.g., guaranteeing a specific result, implying a relationship with a government agency or official, testimonials, availability for employment).
A California attorney learned the hard way that blogging and posting about her personal and professional lives could cross ethical lines. Following a thorough review of her vast social media and blogging platform, an ethics committee determined that posts about her professional life fell under and violated Rule 1.4. Why? The posts could conceivably notify prospective clients about her availability
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. In California, Rule 7.4 generally prohibits attorneys from advertising 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 certification is not misleading and provide the name of the organization that provided the designation.
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 California law.
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: Richard Morse III is a writer, legal scholar, and personal injury attorney at Injury Trial Lawyers, APC – a San Diego, CA based personal injury law firm. Visit getinjuryanswers.com for more information.