Caveats and disclaimers: Since I’m a blogger and an attorney, I’m interested in this stuff. It’s only relevant to attorneys. I compiled this for my own use and am now sharing it. To my fellow lawyers: Of course this is just a beginning of the conversation about what is permissible and not, use it as a starting point for your own research. Please give appropriate credit if you do use it in later written materials!
THE GENERAL RULE: “WHEN IN DOUBT, LEAVE IT OUT”
ADVERTISING
Warning area: web site, blog, Facebook, tweets, Craigslist, everything
Issue: Is this communication commercial speech? If not, the state does not have authority to regulate it. If it is commercial speech, the rules of professional conduct apply. Commercial speech is that which beckons business or proposes a commercial transaction. What if the content does not beckon business, but the purpose of the communication is to attract clients?
Texans Against Censorship, Inc. v. State Bar of Texas, 888 F.Supp. 1328 (E.D. Tex. 1995), afd 100 F.3d 953 (5th Cir. 1996)(lawyer who ran newspaper advertisement expressing opinion about method of judicial selection was not engaged in commercial speech even though his intent was to generate clients); Stern v. Bluestone , 12 N.Y. 3rd 873 (2009)(even though there is an incidental effect of increasing clients, look at content of communication to see if proposes commercial transaction; http://www.nyls.edu/user_files/1/3/4/30/84/85/114/135/12%20N.Y.3d%20873%20Stern%20v.%20Bluestone.pdf, accessed October 18, 2010).
The main criteria is whether the communication is intended for sharing of information or whether it is promotional in nature. Does the communication beckon business? If so, it is advertisement.
Rule 7.2 et seq.
Rule 7.2 (b) If it’s an advertisement, a copy must be filed with the Commission on Lawyer Conduct.
According to ABA recording linked below, courts do not distinguish between “blog” portion of web site and “home page” portion of web site.
SOLICITATION
Warning area: Directory sites, blogging, tweeting.
Issue: Any real time communication with people who are not clients should be considered carefully with the question in mind, “is this communication an attempt to solicit clients, motivated by pecuniary gain?” Secondary issue: has the prospective client invited the communication?
Rule 7.3, Communication with prospective clients
Rule 7.3(c) requires every written or recorded communication soliciting employment be filed with the Commission on Lawyer Conduct and certain information to be kept on file for two years
Imagine a person posts a tweet: “Just got released from Richland County jail, need atty fast.” Would it violate Rule 7.3 for an attorney to respond to that tweet? What if it mentioned being released from jail but did not solicit a response?
STATING A SPECIALIZATION
Warning area: LinkedIn has a box for “specialty”
Issue: Limits on ways lawyers may describe their areas of practice and expertise
Rule 7.4 regulates communication of fields of practice and specialization
Do not allow yourself to become inadvertently designated as a specialist on LinkedIn: Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you should leave blank the LinkedIn profile field for “specialties”. Additionally, the “Answers” section in LinkedIn toolbar designates you as an “expert” after you’ve answered a certain number of questions and gotten positive responses. Therefore, avoid responding to questions in the official “Answers” section of LinkedIn. On the other hand, you can demonstrate knowledge and build relationships by answering questions in LinkedIn discussion groups, since there is no “best answer” or “Expert” designation in that area.
TESTIMONIALS
Warning area: Directory sites, Endorsements, Ratings, Martindale Hubbell, Avvo
Issues: information that is non-verifiable, misleading, or stated without personal knowledge
Rule 7.1(c) (prohibits comparisons to other lawyers’ services, unless substantiated by verifiable objective data
Rule 7.1 (d) prohibits testimonials
Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation
Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation
S.C. Bar Ethics Opinion 09-10 (peer endorsements must meet all general ethics requirements related to solicitation and testimonials, http://www.scbar.org/member_resoucrces/ethics_advisory_opinions/&id=678 )
An attorney should prescreen recommendations on Linked-In before they get posted for public view. Do not make reciprocal recommendations. Do not give anything of value to a non-lawyer for the soliciting prospective clients
FALSE OR MISLEADING INFORMATION
Warning areas: Directory sites, archiving sites, hiring ghost bloggers, gaining access to information through pretexting
Issues: Anything that involves creating an appearance that we are something other than who we really are
Rule 7.1
Philadelphia Bar Assoc Advisory Opinion 2009-02 (ruled it was unethical for an attorney to use a third party to “friend” an adverse witness on Facebook in order to gain access to impeaching evidence, http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf).
Hiring a ghost blogger to fill your web site might arguably mislead clients into thinking that you are more knowledgeable than you really are
CLIENT CONFIDENTIALITY
Warning area: Shared drafting and collaboration platforms such as Google Wave, Blogging, twitter, JD Supra, Foursquare, Facebook, Photos, and other geo-tagged communications. It’s not just in the elevator anymore! Anyone, anywhere could be eavesdropping on your electronic communications, and even your locale could give away important confidential information (e.g. alert client’s competitor to M&A activity if you sign into Yelp and rate a restaurant in city of acquisitions target).
Issues: Disclosure of client information or failure to adequately protect; potential disclosure to third parties through copies or email forwarding
Rule 1.6
Rule 8.3
INADVERTENTLY CREATING ATTORNEY CLIENT RELATIONSHIP
Warning area: Directory sites, blog comments sections, advice sites
Issue: Attorney gives advice in an online forum. Take care to phrase discussions in terms of offering general legal information rather than legal advice.
Rule 1.4
Rule 1.16
Rule Rule 4.4
CONFLICTS OF INTEREST
Warning area: emails or advice given over internet between people who have peripheral or scant relationship
UNAUTHORIZED PRACTICE OF LAW
Warning area: Legal advice sites, blogging, web page, Facebook, twitter
Issue: Geographic boundaries are non-existent online. Take care not to establish attorney client relationship or give legal advice in distant jurisdictions.
Individual state laws define what is the practice of law. Have you read them all?
FOR-FEE REFERRALS
Warning area: Directory sites
Rule 7.2
and see also
Rule 1.7
Rule 1.8
Rule 5.4
EX PARTE COMMUNICATIONS / EAR WHIGGING
Warning area: Facebook, Linked-In, and other community sites where lawyers can “friend” judges
Issue: Communication with a judge outside the scope of a case. The informality and increased access of social media make it easier to engage in ex parte communication. Think before you talk.
Rule 3.5(b)prohibits ex parte communication
IMPROPER CONTACT WITH PARTIES
Warning area: Facebook, Twitter
Issue: Lawyer “friends” a defendant or communicates with a witness
Rule 3.5 (b)
Rule 3.5 (c)
DUTY TO PRESERVE EVIDENCE
Warning areas: Facebook
Duty to preserve evidence and avoid spoliation likely applies to communications via social media whenever litigation seems likely
Rule
SECONDARY SOURCES:
ABA Division for Media Relations and Communication Service, “Beyond the Ethics of Web 2.0 – What’s Now, What’s Next, What If” (audio) http://www.abanow.org/2010/04/beyond-the-ethics-of-web-2-0-whats-now-whats-next-what-if/?audio (accessed October 18, 2010)
Bottom Line Law Group, “Ethics Tips for Lawyers Using Social Media” (accessed October 18, 2010)
Bruce, Deborah, “12 Social Media Ethics Issues For Lawyers,” http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-lawyers/ (accessed October 18, 2010).
Burgus, Laura, “Top 5 Social Media Ethics Concerns for Lawyers” http://lawyerist.com/social-media-ethics-lawyers-top-5/ (accessed October 18, 2010)
Elefant, Carolyn, and Nicole Black. Social Media for Lawyers: the next Frontier. [Chicago, Ill.]: ABA Law Practice Management Section, 2010. Print.
Wall Street Journal Digital Network, “Q&A: Lawyers, Ethics and Social Networking” http://blogs.wsj.com/digits/2010/03/19/qa-lawyers-ethics-and-social-networking/tab/article/ (accessed October 18, 2010)
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