Posted by: johnocunningham | May 11, 2014

Lawyers, Social Media & Ethics Rules

One of the biggest hindrances to the adoption of social media by lawyers is fear of accidental violation of ethical or professional responsibility rules, but there is little reason for fear as bar counsel in most states are happy to help lawyers understand where ethical lines are drawn. Furthermore, many state bars and bar associations have publications that outline where the lines are drawn in their states (see, for example, the Pocket Guide to Social Media published by the Texas Young Lawyers Association).

In general, lawyers and their marketing professionals need to be aware that specific disciplinary rules govern the use of social media for advertising or outreach to clients and prospects in most states. The overarching rule is that lawyers are prohibited (in most cases) from seeking professional employment by various means of contact with someone who has not sought the lawyer’s advice and with whom the lawyer has no familial, past or present attorney-client relationship. In some states, this limitation only applies to contacts that a lawyer initiates with someone “arising out of a particular occurrence or event” (such as a plane crash or massive fire).

It is common for state bars to regulate solicitations by “written, audio, audio-visual, digital media, recorded phone message or other electronic communication” made for the purpose of obtaining employment.

It is also not unusual for state bars to require that lawyers file with bar counsel all advertisements, solicitations, and digital forms of outreach, including Websites (filing can simply be made by supplying the office of bar counsel or ethics counsel with a hyper-link to the sites and pages in question). However, a number of state bars still do not require such filings the last that I checked.

The question of what constitutes a solicitation is often the tricky part of an assessment, but lawyers would be well-advised not to include in their outreach any direct invitation to hire them, especially in connection with a specific event or occurrence.

Blogs that are purely educational, informational or editorial in nature are not likely to be viewed as solicitations, but again, it is wise not to include language in the blog that invites the hiring of the lawyer publisher, especially when blogging about a news event that could involve victims of injustice who would hire the lawyer.

Sites that permit or encourage lawyers or lay-persons to rate professionals and compare them are also ethically tricky. Some state bars prohibit the use of testimonials by lawyers, and a “like” or positive rating could run afoul of such prohibitions (if encouraged or accepted by the lawyer). Some bars permit testimonials, but only of verifiable facts, and thus they prohibit statements that “Joe is the best lawyer in town” and such an endorsement would have to be removed from a lawyer’s Linked-in page.

Sites that confer “expert” status on participants who answer questions in their profession are also problematic in states where lawyers are not allowed to use the words, “expert” or “specialist,” or are not allowed to use them without certain board-certified credentials.

Finally, lawyers and judges must be aware of rules in their governing states that might limit whether they can “friend” each other, or post any kind of social status that might lead to a recusal or accusation of inappropriate personal familiarity.

It seems like there are many rules to trip over, but really there are not, and bar associations and bar counsel are very helpful resources who can highlight the trip-wires for you.

 

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