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A lawyer’s guide to avoiding ethical pitfalls in social media

The following article was originally published in Solo, Small Firms and General Practice News by the OSBA Solo, Small Firms and General Practice Section.

Opportunity for growth: Ethics and social media

Today’s smart lawyers are using social media and the Internet to inspire, inform, educate, create and build. But as a lawyer, before jumping in, there are certain ethical considerations you need to know. This article will focus on some of the ethical pitfalls you may encounter while building your online presence and how to avoid them.

For those of you who haven’t noticed, there’s a new movement going on. It’s changing the way consumers evaluate their need for legal services and identify a lawyer as best-suited to serve those needs. It’s called social media and the growth of this movement isn’t letting up. LinkedIn turned 10 this year, Facebook is nine years old, and seven years ago the first tweet was sent. Social media is inescapable and still has many years ahead. The good news is that if you haven’t figured it out yet, it’s not too late to start.

The facts1
  • Daily active Facebook users: 665 million;
  • Average number of friends per Facebook user: 141;
  • LinkedIn users: 225 million;
  • Companies with LinkedIn company pages: 2.6 million;
  • Average number of tweets sent per day: 400 million;
  • Average number of followers per Twitter User: 208;
  • New users on Google+ every day: more than 925,000.
It is hard to ignore this type of growth and consumer engagement with social media. The rise of social media represents a new way to build relationships—the cornerstone of any attorney’s practice.

The many faces of social media and your online presence
It seems that every couple of months, a new social media channel is created. Web 2.0 spawned the birth of today’s social media platforms, which includes blogs, online directories (i.e. Avvo, Lawyers.com, Manta, LegalMatch.com), online community sites like Facebook, Twitter, You Tube, Google+ and LinkedIn. These social media channels share several characteristics that make them appealing to the legal community.

Your curb appeal
Think about your own habits when you plan a trip or find a plumber. You may have asked your friends or posted a request on Facebook. But one thing I am sure you say is “let me Google that.” If you are doing this then it should be no surprise that these same habits you have developed also apply to consumers looking for an attorney.

When someone Googles you, what will they find? Will they find your blog, your Avvo listing, your website bio, your LinkedIn profile? I call this your “curb appeal.” And just like sprucing up a house that is for sale, you can make a great online first impression by managing these accounts. People will search for you and what they find may be a determining factor in hiring you. They want to see who you know, check out your experience and then decide if you are someone with whom they’d like to do business. People do business with people they know, like and trust. The interactive nature of social media allows you to build relationships on a personal level with potential clients that you haven’t even met.

Social media changes the medium, not the message
The same familiar ethics rules that guide your offline marketing and advertising will guide your online conduct. Unethical conduct is unethical conduct, regardless of the medium through which it is broadcast. A communication that would be considered unethical in traditional marketing doesn’t become acceptable when posted as a tweet or status update. Likewise, a blog post explaining a recent case or the process for filing bankruptcy doesn’t come under scrutiny by the bar association just because it was published online.

As of now, there have been no formal opinions issued by state disciplinary committees on ethics of social media for lawyers and the rules are still evolving. But be proactive with managing your online presence to avoid raising any red flags.

ABA Model Rule 7.1: False or Misleading Information
To avoid being misleading, keep your online presence up to date and make your disclaimers prevent creating expectations that may be misleading to the person visiting the page.

Action items:
  • Update your profiles as you change jobs, board positions or change practice areas, and remove outdated information;
  • When posting articles, date the post and include a note that the content was accurate at date of the writing and readers should not rely on the online information because laws change frequently.
ABA Model Rule 7.1: Testimonials, Endorsements and Recommendations
Testimonials are ethical red flags in advertising because they may create an expectation of success or discuss matters that cannot be factually verified.2 If a lawyer has control over testimonials or recommendations on a third-party site (i.e. LinkedIn), the lawyer is responsible for making sure the posting is accurate and ethically compliant with Rules 7.1 and 7.2. Reciprocal endorsements, recommendations and giving something to someone for recommending you is prohibited.

Action items:
  • Review each recommendation/testimonial/ endorsement to make sure your client did not use words you would be prohibited from using. You can only make claims that can be objectively proven and are not false or misleading.
  • Monitor the skills section of LinkedIn and know you can hide and remove skills you have been endorsed for that are inappropriate.
  • Avoid superlatives like “The best lawyer!” or “A super lawyer!” Use of these may mislead and confuse. Best compared to what? Super: What does that really mean? However, if an attorney received SuperLawyer® recognition, display as, “Attorney Smith was recognized as an Ohio 2013 SuperLawyer.”
ABA Model 7.2: Is your LinkedIn profile, Facebook page, Twitter bio, Google+ page or any directory listing considered advertising
If your online activities promote a law practice, then it is considered lawyer advertising (ABA Formal Opinion 10-457). Your social media sites, which promote you as a lawyer, can reasonably be considered as advertising.

Action items:
  • Be sure your office address appears somewhere on your profile page (Twitter does not allow this but by providing a link to your website, you can show your intent to comply). Rule 7.2 (c) requires any communication considered to be advertising must include the name and office address of at least one lawyer or law firm responsible for the content.
  • Carefully review bios, profile and summary pages. Problematic adjectives to avoid using for newly admitted lawyers include: experienced, seasoned or skilled.
ABA Model Rule 7.3(c): Disclaimers
Every electronic communication from a lawyer to a prospective client known to be in need of legal services should include the words “advertising material” unless it falls under one of the exceptions in Rule 7.3. So, on your sites where you include your email address as a way to communicate with you, add a disclaimer.

Action steps:
  • On your LinkedIn Profile, place a disclaimer in your contact settings, such as:
Example: “I invite you to contact me. Contacting me does not create an attorney-client relationship. Please do not include any confidential information in your communications. I encourage you to visit my website www.lawfirm.com or call me at (513) 333-3333.

Thank you for reaching out. I will be in touch shortly.”

  • Include a disclaimer on your Facebook about section, Google+, directory profiles, Linked In profile and firm Linked In page indicating that visiting your site, viewing articles or contacting you through this site does not establish a lawyer-client relationship and mention that this contact may not be confidential. Be clear and keep it simple.
Example: “The information on this site is not, nor is not intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. ADVERTISEMENT ONLY”

  • For Twitter, use the bio section adding “advertisement only.” With only 140 characters available, keep it simple and fill the rest of the 140 characters with searchable keywords.
ABA Model Rule 7.3: Solicitation versus Advertising
Solicitation involves direct contact with a specific person or group of people for the purpose of getting hired. On LinkedIn, individual requests, from others, to connect or direct messages may be considered to be solicitations. However, given that the prospective client has the ability to ignore the soliciting lawyer request to connect (the Philadelphia Bar Association opinion), it is okay for lawyers to “connect” using LinkedIn.3

Tweeting your availability to represent a car crash victim who posted about the car crash he was just in, is probably going to be considered solicitation. The use of Twitter as a real-time communication micro-blog can create unique ethical opportunities.4

ABA Model Rule 7.4: Specialization and “Expert” Status
Claiming yourself as an expert or specialist requires special certification by an approved, accredited authority. Avoid using the word specialist or expert in any online site.

Action items:
  • On the summary section of your LinkedIn profile, make sure that LinkedIn did not keep the word “specialties” in your summary section when they converted from the old profile to the new in July 2012. If the word “specialties” is used, change this to say, “Practice areas include” or, “I focus my practice in the areas of … .”
ABA Model Rule 1.6: Confidentiality of Client Communications
Posting about “live” cases and matters is one of the hottest areas in legal ethics. Just don’t do it. On Facebook, Google+, and Twitter, a potential ethics landmine is the option to provide geographical coordinates about the places you are posting from.

Action items:
  • Opt out of location tracking settings on your mobile device. The release of your location for a certain amount of time can lead to inadvertent release of attorney-client privileged information.
  • When responding online to questions with prospective clients, provide only general responses and encourage prospective client to call you by using a disclaimer.
Unauthorized Practice of Law: Model Rule 5.5
Answering questions and participating on social sites means your message is sent to those outside your jurisdiction.

Action items:
  • Identify your state of jurisdiction in your profile and when responding to a question, commenting on a post or writing a blog, clarify your answer by stating the state in which your comment pertains.
In August 2012, the ABA House of Delegates adopted resolutions to amend the association’s Model Rules of Professional Conduct to address changes brought by technology and globalization. Among every lawyer’s new duties: keeping up with technology. The ABA added language to Rule 1.1, “making it clear that a lawyer’s duty to stay abreast of changes in the law includes understanding the benefits and risks of relevant technology.”5 Social media sites are continually making changes, adding and removing features and changing security settings. As a practicing lawyer, you are obligated to stay abreast of changes that may affect your online presence and the ethical implications these changes may create.

By Peggy Gruenke, owner of LegalBizSuccess, a company Gruenke created to assist the growing population of solo and small firm attorneys with building a more profitable business by providing an array of management, operations and business development services on an outsourced, as needed basis. www.legalbizsuccess.com.

Endnotes
1 Various Internet sites like www.mashable.com, http://www.activecommunities.com/blog/top-10-social-mediastats- to-watch-2013/.
2 “Social Media for Lawyers–The Next Frontier,” by Carolyn Elefant and Nicole Black.
3 “LinkedIn for Lawyers in One Hour For Lawyers” by Dennis Kennedy and Allison C. Shields.
4 “Twitter in One Hour for Lawyers,” by Jared D. Correia.
5 www.spilmanlaw.com/Resources/Attorney-Authored-Articles/Other/ABA-Amends-Model-Rules-of-Professional-Conduct-to-.  

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