Ethical Social Media Marketing For Lawyers

Law360 (March 14, 2019, 1:54 PM EDT) --
Cort Sylvester
Cort Sylvester
In the modern era, no business promotion plan is complete if it does not include social media, and attorneys' interest in social medial marketing is no different from that of other professionals. What is different, however, is the set of professional ethics rules that govern how attorneys advertise legal services.

The rules of legal ethics originated long before the internet, let alone Facebook and Twitter. Some of those rules have been amended to acknowledge electronic forms of communication, but in many instances, the rules have yet to catch up to the world. In order to truly grasp how these rules apply to social media, attorneys must understand the context from which those rules arose, and the purposes they serve.

Advertising Rules

ABA Model Rule of Professional Conduct 7.2 is the starting point for determining the limits on marketing. Most state ethics rules largely follow the Model Rules, although there are some important differences from state to state, and an attorney should always check their own jurisdiction's specific rules.

Traditionally, lawyers were not allowed to advertise at all, out of a belief that the law is a noble profession above such crass commerce. But, Rule 7.2 now recognizes that the prohibition on advertising was anachronistic, and in its current form it expressly permits marketing legal services through any medium.

Some state versions of this rule specifically reference electronic communications, such as Minnesota Rule of Professional Conduct 7.2(a): "a lawyer may advertise services through written, recorded, or electronic communications, including public media."

The primary limitation imposed by Rule 7.2 is that communications that constitute advertising must include the name of at least one lawyer or firm responsible for its content. Thus, the name of the attorney or firm making a promotional post (or sending an e-mail, etc.) must be apparent on the communication. There can be no hiding behind screen names or anonymous posts if the message falls within Rule 7.2.

Of course, this raises the significant question of what constitutes "advertising." The first comment to Model Rule 7.2 identifies information the rule permits lawyers to distribute, including identification and contact details, types of services offered, fee and pricing information, references (including clients if they so permit) and "other information that might invite the attention of those seeking legal assistance." Posts that discuss current legal issues and display the author's expertise but do not explicitly solicit business arguably are not subject to Rule 7.2.

Solicitation

The rules have also traditionally restricted solicitation of business. Solicitation is distinct from advertising, in that it involves direct contact with someone known to have a particular need for services. The traditional rule was meant to prevent "ambulance-chasing," and to give victims of misfortune some space after being injured in which they could be free from entreaties by lawyers.

In fact, however, the long-standing restrictions on solicitation do not apply to most forms of social media marketing. For one thing, the Model Rules define solicitation as a communication "directed to a specific person" the lawyer knows needs representation. Blog or website posts, tweets and most other forms of social media that are "broadcast" to a wide audience do not meet this definition.

Gray areas certainly exist. For instance, platforms like Facebook or LinkedIn offer options to "target" users who share designated characteristics. Targeted messaging generally would not violate Rule 7.2, since it would be intended to reach a group of people (e.g., in-house counsel) rather that an individual with a particular need for representation.

Moreover, the most restrictive anti-solicitation rule, Model Rule 7.3(b) (which prohibits solicitation contacts except with other lawyers, family or close personal friends, and those with whom the lawyer has an established relationship), applies only to "live person-to-person contact." Electronic contacts (including e-mail or direct messages through a social media platform) avoid this bar, as long as they do not run afoul of other limitations — for example they may not be coercive or harassing, and may not be sent to persons who have asked not to be contacted, or else they may be in violation of Model Rule 7.3(c).

Lawyers should be aware that some jurisdictions may retain provisions from older versions of the rules that could apply to social media marketing efforts. For example, Minnesota Rule of Professional Conduct 7.3(c) requires all written or electronic communication soliciting employment from a person "known to be in need of legal services in a particular matter" to include the words "Advertising Material" on the envelope (if any) and within the communication, unless the recipient is a lawyer or has a close relationship with the sender.

Confidentiality

The relative informality of social media, coupled with the rapidity of the online news cycle, may sometimes tempt an attorney to post without considering other ethical constraints. One might like to jump on a quick social media post highlighting a win for a client, for example.

However, the obligation to protect client confidences applies on social media with the same force as in traditional media. Rule 1.6 requires client consent to the disclosure of any confidential or sensitive information regarding the representation. In general, it is a best practice to ensure that the client consents to any publicity about their matters.

Of course, some disclosures are obviously out of bounds regardless of the medium. For instance, criminal defense attorneys have been sanctioned for blog posts that revealed clients' criminal activity, including drug use, and the details of private conversations with defendants. Even when the information an attorney wishes to post is less incriminating, compliance with Rule 1.6 is still required. An attorney must ensure that either client consent is obtained or that the type of information being posted is not subject to the rule.

Misleading Promotional Statements and Description of Practice Areas

No matter the medium, attorneys may not make false or misleading statements about themselves or the services they offer. Again, the informality of social media should not be an invitation to stretch the truth about one's practice.

One specific area in which accuracy is important is in communicating the types of law in which one practices. Be aware of Model Rule 7.2(c) and any variant on it that applies in your jurisdiction. Social media posts, like any other communications, cannot state or imply that an attorney holds a title or certification in a specialty area unless that is actually true.

Comment 9 to Model Rule 7.2 allows statements that a lawyer "concentrates in," is a "specialist" in, "specializes in" or practices a "specialty," as long as those statements are not false or misleading. Descriptions of areas of concentration will generally be acceptable, as long as your social media presence does not falsely imply that you have been granted some official recognition of your expertise in a field.

Promulgated rules will always lag behind technology. This is as true in law as in any other field. However, a solid grasp of not only the text of the rules, but also their context and purpose, will often reveal the way to move forward with the least risk. Social media presents rich opportunities to get your message out to prospective clients. Attorneys should not let those opportunities pass them by, but they should keep their ethical obligations in mind as they post.



Cortney G. Sylvester is a shareholder at Nilan Johnson Lewis PA.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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