For attorneys, the social media landscape is a potential ethical minefield. But that is no reason not to engage on social media platforms since that is where the potential new client action is these days. You don’t want to miss out on engaging your market there, but you DO want to miss out on violating any ethics rules. Here are some helpful tips that can keep you safely engaged:
Your Social Media Profiles and Posts May Be Considered Legal Advertising
There are undoubtedly many attorneys out there who don’t think their social media profiles or posts could be considered legal advertising. However, in some jurisdictions, this is not the case — which is why it is important for you to know your state bar’s rules on legal advertising. For example, many state bars consider law firm websites to be advertisements. Could this also apply to blogs and social media pages that are by their very nature technically websites? Maybe. Depends on how your state bar views the matter. Most state bars have hotlines you can call with your legal advertising questions. Don’t hesitate to utilize this resource. It could keep you out of unwelcome trouble.
Avoidance of False or Misleading Statements
There are many provisions in the ABA Model Rules that prohibit attorneys from making any false or misleading statements — to clients, potential clients, or anyone else for that matter. Many state bar ethics rules echo these prohibitions. This extends to any social media site that may have a default listing that portrays you as an “expert” or “specialist”. Whenever you create a profile on any website, be sure to check the final product to ensure these default settings have not caused you to inadvertently commit an ethics violation.
Avoiding Prohibited Solicitations
Attorneys participating in social media need to guard against prohibited solicitation. Since social media sites make it so easy for you to communicate to both clients and non-clients alike — as well as other attorneys — you need to exercise caution about how you phrase your posts, evaluating who you are sending it to as well as why you are communicating. Don’t post anything — either publicly or in a private message — to anyone with whom you do not have an existing relationship that smacks of an offer to provide legal services.
Some states do have limited exceptions that exclude certain communications from the prohibited solicitation rules — i.e., communications to family members, close friends, other lawyers, someone with whom you share a prior professional relationship, or other people who request information from you. Again, check with your state bar ethics section for specifics that apply to you.
Disclosure of Privileged or Confidential Information
There is probably no other area that is as ripe for violation as the disclosure of privileged or confidential information on social media. The fact is that it happens more often than you’d think and is probably the most popular way lawyers commit ethics violations, usually unintentionally.
Where this happens most often is in response to negative reviews by former clients. Even though you may be burning to reply to a review that is full of inaccuracies, misstatements or even plain lies, you must be very careful about how you proceed or you may wind up violating ABA and state bar ethics rules prohibiting the disclosure of privileged or confidential information.
If a disgruntled former employee or competitor has submitted the post or it is obviously false (the poster was never a client), you can contact the review site and ask them to remove it. This may not work, but nothing ventured, nothing gained. If the post is genuine, address it in a reply that is positive and seeks to resolve the poster’s issue. Do not be defensive! You may state that your version of the experience is quite different, but do so in general terms. Ask the poster to contact you directly so you can attempt to resolve the matter.
Discussing anything client-related on your blog or website may be done if you have the client’s permission to do so (get it in writing!). Don’t assume that you can use a fictitious name but include the actual details of a case — there have been instances that lawyers have been sanctioned for doing just that when clients recognized themselves online.
While a few courts have said that the prohibition against the disclosure of privileged or confidential information must be weighed against a lawyer’s First Amendment speech rights, most courts draw a hard line when it comes to offenders.
Communicating with Represented Parties
You know you are not allowed to communicate with someone already represented by counsel without obtaining consent from that person’s lawyer. This prohibition extends to social media, so you should not attempt to “friend” someone on Facebook that you know has representation or send them a LinkedIn invitation. Nor are you allowed to do the same with persons in opposing cases in order to gain access to their social media accounts.
Communicating with Unrepresented Third Parties
It is not unheard of for an attorney to utilize social media to interact with third-party witnesses in an attempt to obtain information that will be useful to them in litigation. Any social media that is viewable to the general public is fair game; however, if you have to become that party’s Facebook friend or LinkedIn connection in order to gain access to information on that party’s private social media account, this could be viewed as unethical. Some bar associations even require that you disclose your reason for communicating with the third party in order to avoid any actions made via subterfuge or false pretenses.
Inadvertently Creating Attorney-Client Relationships
For a lawyer, social media can be like a cocktail party, fraught with virtual strangers asking for legal advice. This can create risk for the attorney — when do your ethical obligations to prospective clients kick in? Since social media is so interactive, the lines can become easily blurred.
Posting legal disclaimers on your website and social media profiles that these online communications do not constitute an attorney-client relationship can help, but only if you back it up with behavior that reinforces your disclaimer.
Ratings, Reviews and Testimonials
Today, consumers rely heavily on online reviews for just about everything, including legal services. Some social media sites like Avvo and LinkedIn encourage posting reviews and testimonials on user profiles. However, some state bars prohibit these types of endorsements, or place restrictions on how they can be used — for example, including a disclaimer. If your state bar is among those with these restrictions, you need to be sure your social media profiles and websites comply.
The bottom line: Know the ABA and your state bar ethics rules when it comes to social media. Don’t hire a marketing firm that is unfamiliar with the restrictions you must abide by to stay in good stead with the bar. And when in doubt, ask. This is definitely an area where you want to ask for permission rather than beg for forgiveness.
