What are the legal ethics rules for using social media to market your legal practice? Judging from what’s out there, some lawyers view the social media space as the Wild West, where almost anything goes; and some lawyers are too worried about the possible snares to use social media at all to publicize or share their capabilities. No surprise: the middle path is the one to take.
Blogging lawyers and “self-promotion”
Most recently, the California Bar’s ethics committee issued a non-binding opinion interpreting various kinds of conduct that lawyers with blogs engage in. If a blog post contains “an offer to the reader to engage the attorney, or is a step toward securing potential employment such as offering a free consultation,” then it falls within the state ethics rule’s definition of a “communication” — and is subject to the California rules on lawyer advertising.
Even if the blog doesn’t expressly invite clients to retain the lawyer, it is subject to the California advertising rules if the lawyer invites readers to make contact.
On the other hand, a blog by a California lawyer on a non-legal topic — think knitting, or jazz — doesn’t become lawyer advertising just because it might link to the lawyer’s firm bio or firm website.
This seems unremarkable as a holding — most lawyers are aware that their law-related blogs may be deemed to be advertising and therefore follow the advertising rules of the road. Rule 7.1 of the ABA Model Rules lays out the fundamentals (no false or misleading communications about the lawyer’s services) and Rules 7.2, 7.3 and 7.4 flesh out other prohibitions. (Your jurisdiction may vary from the Model Rules in important ways, and you should always check for ethics opinions that apply, as well as the rules.)
Thinking about marketing by text?
Marketing by text message has also drawn some recent attention.
In October, for instance, a New York law firm was sued in federal court (Pacer ID required) for alleged violations of the Telephone Consumer Protection Act, based on text messages the firm allegedly sent to promote itself. (The plaintiff has withdrawn his motion for class certification.) One text message allegedly read “Breaking News! … Fannie Mae agrees to 11.6 Billion Settlement. Call me to see how this effects YOUR home loan terms…”
A 2013 Ohio ethics opinion determined that Ohio lawyers can use text messages to solicit professional employment from prospective clients, provided they comply with all Ohio ethics rules on lawyer advertising, and all applicable federal and state telemarketing laws.
As a practical matter, the Ohio ethics opinion makes some forms of targeted marketing via text difficult, even if they might otherwise comply with state and federal law. A rule particular to Ohio mandates that a lengthy “Understanding Your Rights” statement be included in any solicitation sent to a prospective client within 30 days of an accident or disaster. The ethics opinion interprets the rule to require the body of the statement to be included in the text message, and not just a link to it or image of it.
Facebook common sense
Finally, there are cautionary tales about lawyers who got into trouble by failing to use common sense on Facebook or other forms of social media, and ethics opinions that point the way to staying out of trouble. Some selected don’ts:Don’t make false statements of fact or law via Facebook messages to unrepresented parties (as we previously blogged about here); Don’t use social media to impugn the integrity of judicial officers; Don’t add an opposing party as a Facebook “friend,” particularly if the person is unrepresented, and you fail to identify yourself as the other party’s lawyer; Don’t respond on social media to a former client’s bad reviews of your legal work by revealing confidential information about the client; Don’t advise a client to take down damaging information from Facebook if doing so constitutes spoliation of evidence.
It pays to be social-media savvy — in fact, Model Rule 1.1 cmt.  provides that your duty of competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Doing just that, and including a big dose of common sense, can help you stay on the right side of the law, ethically speaking.