ATTORNEY ADVERTISING UPDATE: WEBSITES, SOCIAL MEDIA, AND BLOGS

Transcription

1 ATTORNEY ADVERTISING UPDATE: WEBSITES, SOCIAL MEDIA, AND BLOGS D. TODD SMITH Smith Law Group, P.C Capital of Texas Highway South Three Cielo Center, Suite 601 Austin, Texas (512) DEBRA L. BRUCE, JD, PCC Lawyer-Coach LLC 848 Little John Lane Houston, Texas (713) State Bar of Texas SUCCESS STRATEGIES AND KEY LESSONS FOR YOUNG LAWYERS February 28, 2014 Houston CHAPTER 9

2 D. Todd Smith is the founder and president of Smith Law Group, P.C., a civil appellate boutique with offices in Austin and McAllen, Texas. Before launching the firm, Smith served a two-year clerkship with Texas Supreme Court Justice Raul A. Gonzalez (ret.) and then practiced for nearly a decade with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright). Smith earned degrees from Texas Christian University, Texas Tech University, and St. Mary s University School of Law, where he was editor-in-chief of the St. Mary s Law Journal. He is admitted to practice in Texas, in all Texas-based federal district courts, and in the United States Court of Appeals for the Fifth Circuit. He is also admitted to the United States Supreme Court bar. Smith has a statewide practice representing clients in all phases of civil appeals and original proceedings in Texas appellate courts and the Fifth Circuit. A significant part of Smith s practice takes place in trial courts, where he consults for other lawyers and often serves as additional counsel of record. When engaged as part of a trial team, he assists lead counsel with strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review. Smith sits on the Austin Bar Association and St. Mary s Law Alumni Association Boards of Directors and has chaired the Austin Bar s Civil Appellate Law and Solo/Small Firm Sections. He is a former member of the State Bar Appellate Section s governing council and served as editor of its flagship publication, The Appellate Advocate. He is a fellow of both the Texas Bar and Austin Bar Foundations. Smith is a regular author and speaker on appellate-related topics and teaches an appellate practice and procedure course at Solo Practice University, an online resource for law students and lawyers looking to start their own firms. He is the creator and publisher of the Texas Appellate Law Blog ( the first website of its kind to focus on Texas appellate practice, and was among the first Texas lawyers to use social media as a business development tool. Smith is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization. He was included on the Thompson Reuters 2013 Super Lawyers list, named in 2013 Super Lawyers Business Edition, and recognized as a Fifth Circuit litigation star in Benchmark Appellate: The Definitive Guide to America s Leading Litigation Firms and Attorneys. The latter publication listed Smith Law Group as a recommended Fifth Circuit litigation firm.

3 Debra L. Bruce is President of Lawyer-Coach LLC, which provides executive coaching and training, customized for the needs of lawyers, law firms and legal departments. Topics include leadership, team effectiveness, time management, business development and social media. Debra is a frequent speaker and writer on law practice management topics. She practiced law for 18 years before becoming the first lawyer in Texas credentialed by the International Coach Federation. She has served as the Vice Chair of the Law Practice Management Committee of the State Bar of Texas and the Chair of the HBA Law Practice Management Section, as well as the leader of the Houston chapter of the International Coach Federation.

4 TABLE OF CONTENTS I. INTRODUCTION... 1 II. REVISED INTERPRETIVE COMMENT III. FILING REQUIREMENTS AND SOCIAL MEDIA PROFILES... 1 A. General Observations... 1 B. How Are Attorney-Only Sites Different?... 2 C. What About Blogs?... 2 D. Must YouTube or Other Internet Videos Be Filed with Advertising Review?... 3 IV. OTHER ETHICAL ISSUES TO WATCH FOR... 3 A. Recommendations and Reviews... 3 B. Claiming Specialties or Expertise... 3 C. Potential Problems with Status Updates Solicitation by regulated electronic contact Breaching client confidentiality Ex parte communications Pretexting Lack of candor toward the tribunal... 5 V. CONCLUSION... 5 APPENDIX A: State Bar Advertising Review Committee Interpretive Comment i

5 ATTORNEY ADVERTISING UPDATE: WEBSITES, SOCIAL MEDIA, AND BLOGS I. INTRODUCTION An increasing number of Texas attorneys and law firms are using social media sites to enhance their Internet presences. Although many lawyers have embraced social media as part of a broader marketing strategy, others have hesitated for fear of crossing a murky line somewhere in Part VII of the Texas Disciplinary Rules of Professional Conduct the advertising and solicitation rules. 1 This article attempts to bring some clarity by answering common questions about lawyers use of social media 2 and warning about the danger zones they must navigate. In doing so, the article considers the State Bar Advertising Review Committee s latest revision to Interpretive Comment 17, which is among several comments designed to assist the Advertising Review Department in determining whether specific communications comply with Part VII of the Disciplinary Rules. II. REVISED INTERPRETIVE COMMENT 17 In 2005, the Texas Supreme Court broadened the advertising and solicitation rules to include an attorney s electronic or digital communications. Since then, interactive web-based communication tools have developed at a rapid pace. As revised in 2010, the new version of Interpretive Comment 17 was intended to address issues with different kinds of Internet advertisements, from websites and social media websites to web-based display ads and blogs. A side-by-side comparison reveals the differences between the revised comment and the previous version, last updated in Some changes such as a new emphasis on an electronic communication as the triggering event appear to update the comment s terminology to fit the times. The most significant revisions involve entirely new sections focusing specifically on social media sites and blogs and a substantially rewritten section on filing requirements. See generally State Bar Advertising Committee Interpretive Comment 17 (Appendix A). Regarding social media sites, the revised comment states: Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required. Interpretive Comment 17(C). The revision has this to say about blogs: Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements. Interpretive Comment 17(D). The revision also clarified that the form of the electronic communication is irrelevant: Regardless of the form of the electronic communication described in this interpretive comment, the content, including words, sounds, and images, shall conform to the requirements of [P]art VII of the [Disciplinary Rules]. Interpretive Comment 17(E). Finally, with respect to filing requirements, the revised comment states: Electronic communications described in this interpretative comment are advertisements in the public media subject to the filing requirements of Rule 7.07 unless exempt thereunder. It is the communicating attorney s responsibility to demonstrate that any particular online communication need not be filed with the Committee. Interpretive Comment No. 17(G). We will address that matter first. III. FILING REQUIREMENTS AND SOCIAL MEDIA PROFILES A. General Observations As the revised comment indicates, Disciplinary Rule 7.07 addresses the filing requirements for public advertisements and written, recorded, electronic or other digital solicitations. Rule 7.07(c) requires a lawyer s website to be filed, unless it is limited to certain exempt information enumerated in Rule 7.07(e). Sometimes called a tombstone advertisement, the exemptions include contact information, dates of admission to the bar, areas of practice, acceptance of credit cards, languages spoken, and other specified information. Although the revised comment 1 The Advertising Review Rules, Interpretive Comments, Ethics Opinions, and other resources are available at 2 The term social media encompasses many different applications, but this article focuses primarily on social media sites recently or frequently used by Texas lawyers: Facebook, LinkedIn, Twitter, YouTube, and Texas Bar Circle. Google+ is comparable to Facebook, and while not as well established, appears to be gaining ground. 1

6 treats social media profiles as advertisements, even the previous version clarified that a lawyer or law firm s listing on a web-based directory that is accessible by the public shall be exempt from the filing requirements of Rule 7.07 if it meets the requirements of 7.07(e)(1). To this extent, Interpretive Comment 17 seems to have brought about no significant change. Clearly, a social media profile containing only information exempt under Rule 7.07(e) need not be filed. Facebook, LinkedIn, and Texas Bar Circle (discussed separately below) request educational history, however, and LinkedIn also requests employment history. Those categories are not specifically exempted pursuant to Rule 7.07(e). Lawyers could choose not to include that information in their profiles, but they would lose much of the value provided by LinkedIn and Facebook. Social media sites use that information to suggest people you may know and want to connect to or friend. Additionally, your former classmates and colleagues use that information to find you or to distinguish your profile from that of someone with a similar name. Gene Major, the Director of the Advertising Review Department of the State Bar of Texas, has provided some reassurance on this issue since before Interpretive Comment 17 was revised. In interviews, CLE presentations, and articles, Major has consistently affirmed that that the Advertising Review Committee and the Advertising Review Department support Texas lawyers use of technology, including social media, to disseminate information about their services. E.g., Al Harrison & Gene Major, Lawyer for Hire, 76 TEX. B.J. 964 (Nov. 2013); Gene Major, The Effective Use of Social Media Within the Texas Advertising Rules, 73 TEX. B.J. 530 (July 2010). Major has often stated that attorneys may include their true and factual educational background in their social media profiles without triggering a filing requirement. He points to the language in authoritative Comment 8 to Rule The comment states that Rule 7.02 s prohibitions against false or misleading communications do not prohibit communications about various listed topics (some of which are not contained in the Rule 7.07(e) list), and other truthful information that might invite the attention of those seeking legal assistance. He reads Rules 7.02 and 7.07 together to discern the advertising rules intent. The authoritative comments to the Texas disciplinary rules include other indications that the advertising rules were not intended to regulate the kind of ordinary information included in a social media profile. Rule 7.04 sets forth requirements relating to advertisements. Comment 6 to Rule 7.04 references basic factual information about a lawyer that might fit a tombstone advertisement, and asserts that the content of such advertisements is not the kind of information intended to be regulated by Rule 7.04(b). Probably the greatest comfort lies in authoritative Comment 6 to Rule It 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 a lawyer s profile said Call me if you have been injured, and set forth prior successes. Those factors would indicate a solicitation for professional employment that had the potential to be misleading, and therefore would be subject to regulation. If you still are not comfortable, go ahead and file your profile with the Advertising Review Department. They report receiving filings of LinkedIn profiles from a few lawyers. Under Rule 7.07(d), if a lawyer submits an advertisement or a solicitation communication for pre-approval, a finding of compliance is binding in the lawyer s favor. B. How Are Attorney-Only Sites Different? Several years ago, the state bar created Texas Bar Circle, a discussion and networking platform that, in contrast to other social media sites, was restricted to members of the State Bar of Texas. Rule 7.04(a)(3) permits lawyers to distribute to other lawyers and publish in legal directories and legal newspapers (whether written or electronic) their availability and other information traditionally included in such publications. Therefore, lawyers have had more latitude on Texas Bar Circle than on other social media. The State Bar will soon unveil a more robust replacement for Texas Bar Circle that is sure to receive significant attention. The new platform is expected to provide single sign-on integration with the Bar s member portal, My Bar Page, along with improved group discussion features including file libraries, event registration, microsites, and mobile access. The upgraded site will include improved profiles that allow members to search for and network with attorneys who share similar practice areas or interests. Like Texas Bar Circle, this community will be restricted to Texas lawyers, so communications through the new medium will be less restrictive than communications with the general public. C. What About Blogs? Blogs usually consist of commentary or educational information, rather than advertisements and solicitations, and therefore would not trigger a filing requirement. Comment 6 to Rule 7.07 references the intention of the advertising rules to protect the first amendment rights of lawyers while ensuring the right of the public to be free from misleading advertising and the right of the Texas legal profession to maintain its integrity. Comment 1 to Rule 7.02 clarifies that 2

7 the rules are not intended to affect other forms of speech by lawyers, such as political advertisements or political commentary. Gene Major has stated, Blogging has become a very effective form of communication for attorneys to get out information regarding, not necessarily themselves, but specifically about the subject matter or the events relating to their area of practice. Attorneys who use blogs effectively are using them to communicate information that is either editorial or informational in its nature and its tone. That sort of blog, as long as it s editorial or informative or educational, would be exempt from filing requirements. He cautions, however, that exemption from filing does not mean exemption from the prohibition against false, misleading, or deceptive communications on which the advertising rules turn. D. Must YouTube or Other Internet Videos Be Filed with Advertising Review? Filing online videos is not required per se, but if a video goes beyond strictly educational, informational or entertainment content to solicit business, it constitutes advertising and must be filed. Gene Major says that merely including an attorney s contact information on an educational video would not constitute advertisement. So many lawyers go beyond the pale, however, that the Advertising Review Department posted this warning on their website before Interpretive Comment 17 was amended: Attorney or law firm videos disseminated on video sharing websites such as YouTube, MySpace or Facebook that solicit legal services are considered public media advertisements and are required to be filed with the Advertising Review Committee, unless exempted by Rule 7.07(e), TDRPC. After the amendment, the catch-all provision incorporating all forms of electronic communication, including words, sounds, and images clearly brings online videos within Part VII, subject to the Rule 7.07(e) exemptions. See Interpretive Comment 17(E). IV. OTHER ETHICAL ISSUES TO WATCH FOR A. Recommendations and Reviews Some states prohibit the use of testimonials, but Texas does not. On LinkedIn, one can prescreen Recommendations (even unsolicited and unexpected ones) before they get posted for public view. Take advantage of that feature and make sure any recommendations comply with the disciplinary rules. For example, 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. The increased use of Facebook business pages, with their Reviews and fairly new Ratings feature, creates a similar issue. Unfortunately, the only way to preemptively block Facebook business reviews is to omit the physical address from your firm s page. After-the-fact moderation options currently appear limited to either commenting on the review or marking it as inappropriate or as spam. The reviewer s privacy settings may affect these options. Whatever the platform, lawyers would be well advised to avoid making reciprocal recommendations, where the lawyer agrees to post a recommendation in exchange for receiving one. Rule 7.03(b) prohibits giving anything of value to a non-lawyer for soliciting prospective clients. B. Claiming Specialties or Expertise Until recently, LinkedIn featured a profile field for Specialties and another that allowed the user to designate their Expertise. These fields invited problems because Rule 7.04(b)(2) prohibits a statement in an advertisement that a lawyer has been designated by an organization as possessing special competence, unless the organization meets the requirements of that rule, which LinkedIn does not. Unless you are board-certified by the Texas Board of Legal Specialization, you should not claim to be a specialist or to be an expert in any legal field, and even then, you should closely review the Advertising Rules and filing requirements before publicly disseminating that information. C. Potential Problems with Status Updates Social media platforms generally allow users to post status updates consisting of relatively short blurbs of information. The new Interpretive Comment 17 treats status updates as advertisements, but handles them the same as blog posts: they need not be filed as long as they are educational or informational in nature. Identified below are some specific issues associated with status updates. 3

8 1. Solicitation by regulated electronic contact Interactivity constitutes a defining element of all social media. Twitter, however, has such open conversation and rapid response time that a lawyer must keep Rule 7.03(a) in mind. That rule forbids using regulated telephone or other electronic contact to solicit business arising out of a particular occurrence or event from someone who hasn t sought the lawyer s advice. Rule 7.03(f) defines regulated electronic contact to include electronic communication initiated in a live, interactive manner. Comment 1 to Rule 7.03 specifically references chat rooms, and both Facebook and Twitter sometimes resemble chat room conversation. 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 me. Unless the lawyer already had the requisite prior relationship with the tweeter, that contact may violate Rule 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 this tweet probably would not violate Rule 7.03 because the tweeter asked for a lawyer. Additionally, the advertising filing requirements of Rule 7.07 would not apply to this tweet because Rule 7.07(e)(8) exempts from filing a solicitation communication that is requested by the prospective client. 2. Breaching client confidentiality The casual nature of social media can lure attorneys into unintentionally breaching 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 knew who was meeting with the lawyer that day. 3. Ex parte communications According to a public reprimand accessible at 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. However, in a case of first impression, the Dallas Court of Appeals held that merely designating someone as a friend on Facebook was not improper and did not require judicial recusal because it does not show the degree or intensity of a judge s relationship with a person. Youkers v. State, 400 S.W.3d 200, 206 (Tex. App. Dallas 2013, no pet.) (quoting ABA Standing Comm. on Ethics & Prof l Responsibility, Formal Op. 462 (2013)) One cannot say, based on this designation alone, whether the judge and the friend have met; are acquaintances that have met only once; are former business acquaintances; or have some deeper, more meaningful relationship. Thus, the designation, standing alone, provides no insight into the nature of the relationship. Id. (citation omitted). When a lawyer and a judge connect via social media, both must use good judgment and common sense. Ex parte communications are clearly off-limits, and a lawyer who implies that their connection with a judge on social media will somehow lead to special treatment treads on very dangerous ground. Within the proper boundaries, though, social media can be a fruitful (and ethical) way for lawyers and judges to interact with each other outside the courtroom. See, e.g., ABA Op. 462; Judge Susan Criss, The Use of Social Media by Judges, 60 THE ADVOC. 18 (2012); Judge Gena Slaughter & John G. Browning, Social Networking Dos and Don'ts for Lawyers and Judges, 73 TEX. B.J. 192 (2010). 4. Pretexting Many lawyers have discovered 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 another media. Lawyers may be tempted to disguise their identity to friend the target, or to ask someone else to friend the target and share what they see. That is often referred to as pretexting because it involves getting information by way of a pretext or false pretenses. While there has not been a case or opinion published in Texas directly relating to pretexting in social media, in March 2009, the Philadelphia Bar Association issued an opinion that provides guidance. See Philadelphia Bar Association, Professional Guidance Committee: Opinion , accessible at on_ pdf. The inquirer proposed to have a third party ask to friend a witness on Facebook and MySpace to gain information to impeach the witness. The opinion cited provisions of the Pennsylvania Rules of Professional Conduct that correspond to Texas Disciplinary Rules of Professional Conduct 4.01, 8.04(a)(1) and (3), and 5.03(b). The Committee said that such pretexting would involve dishonesty, fraud, deceit or misrepresentation on behalf of the lawyer, or the encouragement 4

9 of such behavior, in violation of the aforementioned rules. A similar opinion has been issued by the New York City Bar Association. See New York City Bar Association Formal Opinion : Obtaining Evidence from Social Networking Websites, accessible at Any lawyer seeking investigative information about a party or witness through social media would be wise to review these opinions and the Texas rules referenced above for ethical guidance. 5. Lack of candor toward the tribunal Rule 3.03(a)(1) prohibits a lawyer from knowingly making a false statement of material fact to a tribunal. Many judges report incidents where lawyers have made statements in court that do not align with their recent Facebook status updates. For example, Judge Susan Criss of Galveston recounted to an ABA audience that a lawyer who had friended her on Facebook posted a string of Facebook updates about drinking and partying. Then the lawyer told Judge Criss in court that she needed a continuance because her father had passed away. Molly McDonough, Facebooking Judge Catches Lawyer in a Lie, Sees Ethical Breaches, go. Judge Alexandra Smoots-Hogan of Houston has had similar experiences. Lawyers, I read Facebook! she admonished at a Houston Bar Association program in V. CONCLUSION Interpretive Comment 17 leaves open the possibility that the Advertising Review Department may view legalrelated posts beyond those that are educational or informational as advertisements or solicitations. Those hoping that the new version would provide a litmus test for social media and blogs will no doubt be disappointed. As a practical matter, the comment simply steers lawyers back to the disciplinary rules to guide their decisions about what they post on the Internet. The medium may have changed, but how the State Bar views communications between lawyers and the public has stayed the same. From the beginning, blogging and social media advocates have cautioned lawyers against blatantly selling themselves or their services. Doing so diminishes the real value these tools are capable of delivering: establishing or enhancing one s reputation as an expert in a particular field, relationship-building, and generating goodwill. When done right, there are no inconsistencies between social media and the fundamental goal behind the disciplinary rules: protecting the public against false, misleading or deceptive communications. 5

10 Attorney Advertising Update: Websites, Social Media, and Blogs Chapter The Internet and Similar Services Including Home Pages. (March 1996, revised May 2003, Revised 2010) Part VII of the Texas Disciplinary Rules of Professional Conduct applies to information disseminated digitally via the Internet. A digitally transmitted message that addresses the availability of a Texas lawyer s services is a communication subject to Rule 7.02, and when published to the Internet, constitutes an advertisement in the public media. A. Websites A website on the Internet that describes a lawyer, law firm or legal services rendered by them is an advertisement in the public media. For the purposes of Part VII of the TDRPC, website means a single or multiple page file, posted on a computer server, which describes a lawyer or law firm s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL). Of the pages of a website subject to these rules, many may be accessible without use of the site s own navigational tools. Of those pages, for the purpose of this Interpretative Comment, the intended initial access page is the page of the file on which navigational tools are displayed or, in the case that navigational tools are displayed on several pages, the page which provides the most comprehensive index capability on the site. The intended initial access page of a lawyer or law firm s website shall include: 1) the name of the lawyer or law firm responsible for the content of the site 2) if areas of law are advertised or claims of special competence are made on the intended initial access page or elsewhere on the site, a conspicuously displayed disclaimer regarding such claims in the language prescribed at Rule 7.04(b); and 3) the geographic location (city or town) in which the lawyer or law firm s principal office is located. Publication of a link to a separate page bearing the required disclaimer or information required by Rule 7.04(b) does not satisfy this requirement. B. Web-Based Display/Banner Ads An image or images displayed through the vehicle of an electronic communication is an advertisement in the public media if the ad describes a lawyer or law firm s practice or qualifications, whether viewed independently or in conjunction with the page or pages reached by a viewer through links offered by the ad ( target page ). The content of a web-based display or banner ad will be viewed in conjunction with the target page. C. Social Media Sites Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required. D. Blogs Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements. 7

11 Attorney Advertising Update: Websites, Social Media, and Blogs Chapter 9 E. Compliance Regardless of the form of the electronic communication described in this interpretive comment, the content, including words, sound and images, shall conform to the requirements of part VII of the TDRPC. F. Records Retention A printed copy of the electronic communication including, where applicable, intended initial access page, profile page, web-based display/banner ads and target page are subject to the retention requirements of Rule 7.04(f). G. Filing Requirements Electronic communications described in this interpretative comment are advertisements in the public media subject to the filing requirements of Rule 7.07 unless exempt thereunder. It is the communicating attorney's responsibility to demonstrate that any particular online communication need not be filed with the Committee. H. Web-Based Directories A lawyer or law firm s listing on a web-based directory that is accessible by the public shall be exempt from the filing requirements of Rule 7.07 if it meets the requirements of 7.07(e). I. Internet Domain Names Rule 7.01 prohibits lawyers and law firms from advertising or practicing under a trade name or a name that is false and misleading. Therefore, an internet domain name or URL may not be used as the name under which a lawyer or firm does business. A domain name that is a reasonable variation of the law firm name as permitted under Rule 7.01 or that is a description of the lawyer or law firm may be used as a locater or electronic address only if such use does not violate the provisions of