Social media websites allow anyone — or more accurately everyone — to communicate and share ideas and opinions with a wide-ranging audience. Websites like Facebook, Twitter TWTR -1.79%, YouTube andLinkedIn LNKD +2.78% provide an extraordinary means for professional and personal networking and self-promotion, and for researching personal and professional contacts. In previous blog posts, I addressed ethical perils for lawyers who access social media websites to research potential jurors and for lawyers who advise clients concerning the propriety of removing potentially incriminating and discoverable material from social media websites. This post addresses yet another category of ethical pitfalls for lawyers who use social media: The risk of violating the ethical rules that govern attorney advertising by using social media for professional self-promotion.
To “assist lawyers in understanding the ethical challenges of social media,” earlier this year the Commercial and Federal Litigation Section of the New York State Bar Association (“NYSBA”) issued Social Media Ethics Guidelines (the “Guidelines”) for New York attorneys. The NYSBA acknowledges that its publication “merely” consists of “Guidelines” and reminds lawyers that the “world of social media is a nascent area that is rapidly changing and ‘best practices’ will continue to evolve to keep pace with such developments.” While the social media world continues to develop, to avoid running afoul of the Rules of Professional Conduct, New York lawyers who use social media to promote their legal practice should consider the following Guidelines:
Attorney Advertising and Solicitation Rules Apply to Social Media Posts
According to Guideline No. 1.A, attorney advertising and solicitation rules apply to social media accounts that are used primarily for legal or marketing purposes. The commentary also specifies that a “prudent” lawyer should assume that a hybrid account — used for both personal and professional purposes — also is subject to these rules. Lawyers who use social media to promote their legal services should, therefore, use the same disclaimers that they would use to disseminate the information in print. The commentary to Guideline No.1.A states that even a “Tweet” used to promote a lawyer’s services — which can be no longer than 140 characters — must contain the information required in attorney advertisements, which can be provided using commonly recognized abbreviations. So, a Tweet used to advertise a lawyer’s services might just need to end with this 90 character message: “This Tweet contains attorney advertising. Prior results do not guarantee a similar outcome.” Although there are commonly recognized abbreviations for the words “attorney advertising,” PRDNGSO is unlikely to be considered an abbreviation common enough to replace “Prior results do not guarantee a similar outcome.”
Attorneys Must Beware of “Pre-Defined” Headings Used in Social Media Networking Sites
A lawyer is not ethically permitted to describe herself as a “specialist” or state that she “specializes” in a particular area of law unless she is certified by an accrediting body approved by the American Bar Association. In an ethics opinion last year on “Listing in social media,” the NYSBA Committee on Professional Ethics concluded that law firms may identify the areas of their law practice on social media sites but may not list their services under the subheading “specialties.” And, individual lawyers cannot ethically identify themselves on social media websites under headings that use the term “specialist” or “specialties.” The opinion did not address whether lawyers may ethically list practice areas under the headings “Products & Services” or “Skills and Expertise.” But, ethics opinions issued in other states have prohibited lawyers from listing practice areas under other headings such as “expert,” so lawyers who practice in multiple jurisdictions should beware. Because social media websites frequently change their headings, attorneys must monitor their social media profiles to be certain that their headings are not changed in a way that would cause the description of their law practice to run afoul of ethical requirements. Moreover, Guideline No. 1.C specifies that a lawyer must monitor her social media profile to ensure that comments and recommendations by others comply with ethics rules. For example, if a client posts a recommendation on an attorney’s social media page and calls that attorney the “best” real estate attorney in the state, the lawyer should assess whether that description violates the rules of conduct in her jurisdiction. Under the NYSBA Guidelines, if a lawyer determines that such a post does violate the Rules of Professional Conduct, she must remove the violative content if the content is within the lawyer’s control or, if not within her control, ask the person who posted it to remove the content. Lawyers, therefore, should not create social media profiles on professional networking websites like LinkedIn, unless they intend to monitor them.
Lawyers encounter social media websites in many different facets of their legal practice and the ever-changing nature of social media requires that lawyers vigilantly stay abreast of ethical guidance relating to the use of such technology. It may take far less time to dash off a brief “Tweet” than it would have in a pre-social media world to place an advertisement for legal services in a periodical, but, before pressing send, attorneys should take the time to consider their obligations under the Rules of Professional Conduct. Although the technology is new and changing, the same old rules of conduct apply.