Mar 11, 2010
12 Social Media Ethics Issues for Lawyers
by Susan Cartier Liebel
Lessons From The Lawyer-Coach
Given the growing population of lawyers engaged in social media and our recent Solo Practice University class by social media maven, Toby Bloomberg discussing social media’s place in successful enterprises (law firms included), I thought it would be wise to bring in someone who can discuss the various ethical issues surrounding social media for lawyers.
Debra L. Bruce is president of Lawyer-Coach LLC , a law practice management coaching and training firm, and author of the Raising the Bar blog. She practiced law for 18 years before becoming the first Texas lawyer credentialed by the International Coach Federation (ICF). She is a former Vice-Chair of the Law Practice Management Committee of the State Bar of Texas and a past leader of the Houston chapter of ICF. You can follow her at www.Twitter.com/LawyerCoach.
Guest Blogger – Debra Bruce
Beyond the usual internet concerns about inadvertently establishing an attorney-client relationship or giving advice on inadequate information, online networking can create ethical risks that might not be readily apparent. This post highlights some ethical risks on four social media sites frequented by lawyers: Facebook, LinkedIn, Twitter and YouTube.
Since I’m a Texas lawyer, I’m the most familiar with the Texas Disciplinary Rules of Professional Conduct, but I’ll mention a couple of other states for contrast. You should refresh your familiarity with your own state’s rules.
1. Social media profiles might be subject to state bar advertising rules, with significant ramifications.
Many states have special requirements for lawyer advertising, such as:
- Filing with a reviewing authority prior to or shortly after public dissemination;
- Inclusion of mandatory information, such as the address of the principal office of the law firm and the name of the person responsible for the content of the ad;
- Labels such as “Attorney Advertising” or “Advertising Material” at the beginning and end of the message;
- Inclusion of specified disclaimer language; and
- Retention of copies of each advertisement for a specified period of time.
The Tennessee Board of Professional Responsibility regards LinkedIn profiles as advertising. By contrast, the Advertising Review Department of the State Bar of Texas takes the position that LinkedIn and Facebook profiles do not need to be filed for advertising review. For a detailed discussion of the Texas position, see my article in the March 2010 issue of the Texas Bar Journal.
Some states waive filing of “tombstone” ads limited to a laundry list of basic information about the lawyer and the law office. Often a lawyer’s LinkedIn profile contains only the exempt information, so it doesn’t trigger the advertising rules. The Texas Rule 7.07(e) fails to include educational history in its list of exempt information, however. Social networking sites use educational history to suggest people that you might know and want to connect with, so that’s important information to include in your profile.
Probably the strongest argument against the application of advertising rules to social networking sites depends on the way in which they are used. In Texas, the official Comment number 6 to Rule 7.07 reminds us that “communications need not be filed at all if they were not prepared to secure paid professional employment.” Using social media to build and enhance relationships and to engage in discussions about topics of interest can be distinguished from advertisement or solicitation. A different conclusion would be reached, however, if the lawyer’s profile said “Call me if you have been injured,” and set forth prior successes.
2. Different rules may apply to social networking sites focused on the legal community.
Some states exempt advertisements in legal newspapers, legal directories and other media focused on or restricted to lawyers. In Texas, Rule 7.04(a)(3) permits lawyers to publicize their availability in legal directories and legal publications. As a result, lawyers have more latitude on Texas Bar Circle, the social networking site restricted to members of the State Bar of Texas, than on other social media. If your state has particularly restrictive policies about advertising that extend to social media, investigate whether the rules might be more lax with regard to LawLink, Legal OnRamp, Martindale-Hubbell Connected, or a state bar networking site.
3. Blogs vs. websites.
Although state bars usually categorize websites as advertisements, they often treat legal blogs differently. In Texas, the Advertising Review Department does not categorize “blawgs” as advertising, if they consist of commentary or educational information. Comment 1 to Texas Rule 7.02 clarifies that the advertising rules “are not intended to affect other forms of speech by lawyers, such as political advertisements or political commentary.” At least one New York Bar Association webinar, presented by the New York State Bar website editor, suggested that a blog would be considered an advertisement there, however.
4. The “Recommendations” feature of LinkedIn.
Some states prohibit the use of testimonials, or require certain restrictions or the insertion of disclaimers, such as in Rule 7.1(d) and (f) of the New York Rules of Professional Conduct. LinkedIn permits your connections to write testimonials about you in the Recommendations section of your profile. You can prescreen recommendations (even unsolicited and unexpected ones) before they get posted for public view, so make sure they comply with the disciplinary rules. For example, in Texas, Rule 7.02(4) prohibits comparisons to other lawyers’ services, unless substantiated by verifiable objective data. Therefore, if your client enthusiastically reports that you are “the best trial lawyer in town,” you will need to diplomatically ask for a revision before publication.
Lawyers would be well-advised to avoid making reciprocal recommendations, where the lawyer agrees to post a recommendation in exchange for receiving one. Rule 7.2(b) of the ABA Model Rules prohibits giving anything of value in exchange for a recommendation. Also Texas Rule 7.03(b) prohibits giving anything of value to a non-lawyer for soliciting prospective clients.
5. Designation as a specialist or expert on LinkedIn.
A LinkedIn profile has a field for “specialties.” Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you should leave it blank. ABA Model Rule 7.4(d) and most state rules prohibit a statement that a lawyer is a specialist without the particular sanctioned accreditation.
The “Answers” section on the LinkedIn toolbar can also pose problems. When you respond to questions there, the readers vote on the best responses posted. If you accrue a number of best response votes, LinkedIn automatically designates you an “Expert” in that category. That designation probably violates most specialization rules.
You can, however, demonstrate your knowledge and build relationships by answering questions in LinkedIn discussion groups that you join. There is not an Expert designation or “best answer” feature in the discussion groups.
6. Solicitation by real-time electronic contact.
Twitter has such open conversation and rapid interaction capability that a lawyer must keep ABA Model Rule 7.3 (or the local equivalent) in mind. The rule forbids using real-time electronic contact to solicit business directly from a potential client. In some states, the prohibition only arises in the case of an accident or similar circumstance, where the potential client has not sought the lawyer’s advice.
By way of illustration, when someone tweeted on Twitter that she just got a DUI, a lawyer responded to her: “If you are looking for a DUI lawyer, I can give you my Twitter big break on fees…email me.” Unless the lawyer already had the requisite prior relationship with the tweeter, that contact would violate ethical rules in a number of states.
On another occasion, a different person tweeted, “Just got out of the Cobb County jail. Anyone know a good inexpensive DUI lawyer?” The foregoing response to that tweet would be permitted in some states, because the tweeter asked for a lawyer.
7. Breaching client confidentiality.
The casual nature of social media can lure attorneys to unintentionally breach client confidentiality. In a tweet a lawyer wrote, “Just talked to my client who totally lied to me about all the facts.” Since the date and time of the tweet gets posted, it has the potential of revealing information to someone who might know that the client was meeting with the lawyer that day.
8. Ex parte communications.
According to a public reprimand, a North Carolina judge engaged in unethical Facebook activity relating to a case being tried before him. During a child custody case, District Judge B. Carlton Terry Jr. “friended” defense counsel, and each of them discussed aspects of the case on Facebook, constituting ex parte communications. Plaintiff’s counsel had indicated she was not on Facebook. The judge also conducted ex parte online research about the plaintiff by googling her and visiting her website.
9. Pretexting.
Many lawyers find useful information about a litigation party or witness in their postings on social media. Due to privacy settings, sometimes valuable information would not be visible to the public in general, but would be visible to hundreds of “friends” of the target on Facebook or other media. Lawyers may be tempted to disguise their identity in order to friend the target, or to ask someone else to friend the target and share what they see.
In March 2009, the Philadelphia Bar Association issued an opinion that such pretexting would involve dishonesty, fraud, deceit or misrepresentation on behalf of the lawyer, or the encouragement of such behavior, in violation of the Pennsylvania ethics rules.
10. Lack of candor toward the tribunal
ABA Model Rule 3.3, and most state bar rules, prohibit lawyers from knowingly making a false statement of material fact to a tribunal. Many judges report incidences where lawyers make statements in court that do not appear to align with their recent Facebook status updates. That can get you in hot water.
11. YouTube videos.
If a lawyer’s YouTube video goes beyond strictly educational, informational or entertainment content, it constitutes advertising, subject to same rules that apply to television ads. In Texas, merely including an attorney’s contact information on a purely educational video, without soliciting contact, does not constitute advertisement.
12. Risks with Google Buzz.
Google launched the new social media platform Google Buzz on February 9, 2010. Initially Buzz included an auto-follow feature that created Buzz connections from the most frequent email and chat contacts of Gmail users, displaying such contacts to other connections and on their Google profile. That public exposure would breach client confidentiality for lawyers that use Gmail. Google made some changes due to public outcry about privacy concerns. Lawyers who use Gmail or Google Buzz should monitor their settings, as well as developments with Buzz, to make certain that they do not inadvertently compromise client confidentiality.
Buzz also has a “geo-tagging” feature for posts made from a smart phone. It pinpoints the location on Google Maps of a poster at the time of the post. Buzz contains a “nearby” feature that searches for posts previously made in the area. Geo-tagging a lawyer’s whereabouts might inadvertently reveal a client confidence. For example, publication of a corporate lawyer’s location at a restaurant across the street from a public company out of town might prematurely tip off confidential merger negotiations.
Social media can level the playing field for small firm lawyers. If you haven’t read your state’s ethics rules in a while, however, it’s time for a refresher course!
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.
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Jonathan said on Mar 11, 2010
Very interesting article. It raises several questions regarding the laws being so far behind the technology.
Your point number 6 I found quite intriguing. I wonder how state define the requisite prior relationship with the tweeter? For instance, would an attorney be able to DM tweet the tweeter if they were already following the attorney on Twitter? Would that constitute the requisite prior relationship with the tweeter?
Most businesses, attorney’s included, are integrating blogs, twitter, facebook and other social mediums into their websites.
Going to be quite interesting to see if and how the regulations change and adapt to this ever-changing digital world we live in.
Carolyn Elefant said on Mar 15, 2010
I don’t think this is an example of law being behind technology – rather, it’s a case of bars needlessly making new rules when most existing rules would suffice. As I’ve explained in my upcoming book on Social Media for Lawyers with Nicole Black, social media changes the medium, not the message. A substance only blog is no different from a lawyer writing a journal article or informational Q&A for a local newspaper – the latter has never been considered advertising, so it’s not clear why the former would be. Talking loudly about your strategy for a criminal case on a cell phone in a public place would violate the rules on confidentiality – and it’s no different if the conversation takes place on Facebook or Twitter. Linked In profiles are no different from Martindale Hubbell listings – yet no one ever thought to subject those to advertising rules (Martindale let lawyers list specializations also). The real problem isn’t that the law hasn’t kept pace, rather, the bar has jumped the gun, moving into the fray to address fact specific scenarios where it’s unnecessary because existing rules apply just fine. If we wait for the bars to address every fact specific scenario, lawyers will be paralyzed given the pace at which new applications are emerging every day.
wesclark said on Mar 16, 2010
[sarcasm] We all know that the profession couldn’t continue to exist without the endless promulgation of new rules for every aspect of practicing law. [/sarcasm]
All too often it seems as though the Bar’s goal IS to paralyze lawyers, or at least build a wall around traditional practices by working to disallow useful innovation in order to protect the establishment. I say we get rid of the state-sponsored monopolies altogether and let the market sort it out. There’s no need for the point of a gun (the state) to decide who can be a lawyer or how such a person can conduct their business. Oh, I know, I’m a dreamer but I can’t let reality get in the way of logic.
Chuck Newton said on Mar 16, 2010
Wes talks about the bar-tenders, as I like to call them. Many are my friends and I do a lot of work for the Texas Bar, which is a unified bar. To to say that it and any group is not concerned with the status quo is an understatement. That was the reason in the 1990 I was one of the ones that had to bring suit in the Texas Supreme Court and then the federal court over lawyer advertising rules in the State. We got many of them overturned but, sadly, not all.
Debra L. Bruce said on Mar 22, 2010
In response to Jonathan’s question about how states define the “requisite prior relationship” with the tweeter: the rules vary some from state to state, but usually require that direct contact not be initiated by the lawyer unless the person is a family member or a prior client. As a reminder, the rules in question relate to contact for pecuniary gain following a specific incident.
So the relationship of a mere Twitter follower is not the type that would be sufficient to allow the lawyer to contact someone directly. Tweeting generally about being willing to take on representation or posting something on a website, would not be considered unethical contact in most states. It would, however, be considered advertising in most, and subject to the advertising rules.