Legal Ethics in Social Media: Legal Blogs, Firm Web Sites and Marketing Sites

This comic strip portrays the view that many of us have about ethics: the rules only apply to someone else.

I am as guilty as the next guy in seeing my world through my own prism of what I want to do. On the big issues, I have no problems. I would never steal a client's money or get involved in a conflict of interest. Marketing the firm is a problem for me. I want to do it ethically, but I also want clients and potential clients to be aware that we are available. 

The Internet is wide open market, perhaps to open.

It may not be the best place to market to a specific client, but in reality, we are not supposed to directly solicit clients by any means, right? We all know of  personal injury lawyers who make direct solicitation of people who have been injured by requesting the accident report. Fortunately, many states have curtailed that practice.

However, what about the insurance defense lawyer who makes a contact with potential client over a new lawsuit? That is just as clear a violation. Even if the company is a member of association you are a member, be careful how you make the company aware of the claim.  

The general information on websites is a bit more problematic because you may not be directly soliciting, but are you still in violation of ethical rules?

The following information was presented for publication in The Transportation Lawyer, a publication of the Transportation Lawyer's Association; however, for those who are not members of the TLA, I am offering my thoughts on the subject here.

Like many other attorneys, I have website and blog. I strive to educate clients and potential clients about issues that may result in their calling on me to assist them in the future. When I make relationships, I stay in touch with the client in the event that they need my services. In the zeal of keeping clients informed or making new relationships, I must be ever mindful of ethical rules.

 

Even if you have a national client, you are still subject the ethical rules in every state you are licensed. The Internet may be global, but your State Bar Association dictates the  ethical rules  for YOU. In an effort to give some guidance on this subject, I have outlined some basic rules to keep in mind regarding “social media.”

 

Beware.  These are just basic guidelines. You should consult the guidelines of every state you are licensed to ensure that you comply.

1. MAKE NO FALSE OR MISLEADING STATEMENTS

Bottom line:

Do not misrepresent yourself, your services or your capabilities.

ABA Model Rule 7.1 prohibits false or misleading communications. Social media creates a quick and powerful form of marketing, but do not mislead the public.

For example, we should all review and regularly monitor client lists. If a client is no longer in business, has changed its name or no longer uses your firm, you must remove them from a list of representative clients.  On the other hand, just because an institutional client has not used your services in a while, shouldn’t require you to remove them as representative clients. Names that you KNOW are no longer using your firm, should be removed.

Also, in the enthusiasm to build a practice, lawyers should be cautious not to overstate their capabilities and experience.

 2. NEVER  BETRAY CLIENT CONFIDENCES

I read recently where a former Illinois assistant public defender had her law license suspended for 60 days because her blog postings exposed client confidences. She thought that she was blogging about her clients anonymously; however,  Bar authorities concluded that she provided sufficient detail in some posts to allow specific clients to be identified.

Best Advice: Never blog about your own clients or cases, except as to details that have unequivocally become public. There is a great deal else for you to blog about.

3. AVOID FORMING ATTORNEY-CLIENT RELATIONSHIPS

Many lawyers don't answer Q&A forums on sites for fear of forming an attorney-client relationship. However, the  Ethics 20/20 Commission suggests that this danger exists only when the lawyer gives the prospective client a "reasonable expectation" that he or she is willing to form an attorney-client relationship.

A lawyer can participate in these forums but also disavow any "reasonable expectation" by expressly using cautionary language and disclaimers in an answer.

Responses should be general and avoid responding to specific facts. Clearly state that your  answer should not be considered legal advice.

4. BE WARY OF THE UNAUTHORIZED PRACTICE

If you are admitted only in one state, you cannot give legal advice in another state.

Be advised against giving fact-specific advice online. Include disclaimers in any answers to specific questions. There is a big difference between educating and advising, but you can be caught in a trap if you don’t keep the difference in mind.

5. RECOMMENDATION RULES

"A lawyer shall not give anything of value to a person for recommending the lawyer's services." ABA Model Rule 7.2.

Does this mean you cannot provide an endorsement of a colleague on LinkedIn ? No! As long as nothing of value is exchanged, you can make the recommendation. On the other hand, if you promise to provide an endorsement if the other attorney promises to endorse you, then that quid pro quo could be seen as an exchange of value.

For example, even if I offered a key-chain or beach blanket with the firm logo in exchange for people posting on my blog site or getting others to go to the site, I could be in violation of this rule.

What about the blog sites that allow you to monetize by allowing ads to be posted on the blog site? In my opinion, it is a clear violation of Ethical Rule 7.2.

6. TRIAL PUBLICITY

ABA Model Rule 3.6 limits what a lawyer can say about his or her own cases. The rule says that you cannot say anything that "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

This may be a very gray area, but one that lawyers should be mindful of when they blog or tweet about pending cases — and another good reason not to blog about your own cases in the first place.

7. DO NOT SOLICIT

Ethical rules prohibit lawyers from soliciting potential clients for pecuniary gain. Fear of solicitation keeps lawyers off of Twitter, Facebook and other social networks. Such fear is unfounded.

No question, a lawyer could solicit through any of these media — but the lawyer would have to be trying very hard to do so.

For it to be solicitation, it must  be targeted at a specific individual and intended to be perceived as an offer to provide legal services. Merely engaging with the public in an online forum of any kind is not solicitation.

8. USE COMMON SENSE

I don’t know if this is the best advice, but it seems that common sense in your use of social media is  unlikely to get you  into trouble.

Think carefully before you hit publish. Anything you publish on the Internet is public information so if you are in doubt, leave it out.

I am interested in how you monitor the ethics of social media for your firm. If you have some additional ideas or concerns, please share them with me at perkins@perkinsfirm.com. Also, I would welcome the critical  review of our firm’s website at www.perkinsfirm.com.