SOCIAL MEDIA AND LAW FIRM MARKETING: A REVIEW OF ETHICS GUIDANCE OPINIONS
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1 SOCIAL MEDIA AND LAW FIRM MARKETING: A REVIEW OF ETHICS GUIDANCE OPINIONS Presented by the American Bar Association Law Practice Division and Center for Professional Development
2 American Bar Association Center for Professional Development 321 North Clark Street, Suite 1900 Chicago, IL CDs, DVDs, ONLINE COURSES, DOWNLOADS, and COURSE MATERIALS ABA self-study products are offered in a variety of formats. Find our full range of options at Submit a Question Visit to submit a question on the content of this course to program faculty. We ll route your question to a faculty member or qualified commentator in 2 business days. The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Law Practice Division or Center for Professional Development unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only American Bar Association. All rights reserved. This publication accompanies the audio program entitled Social Media and Law Firm Marketing: A Review of Ethics Guidance Opinions broadcast on April 13, 2016 (event code: CE1504EEM).
3 TABLE OF CONTENTS 1. Presentation Slides 2. Bibliography of Cases and Rules Elizabeth Treubert Simon, Peter R. Jarvis and Jennifer Ellis
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5 Social Media and Law Firm Marketing: A Review of Ethics Guidance Opinions American Bar Association April 13, 2016 JENNIFER ELLIS PETER R. JARVIS ELIZABETH TREUBERT SIMON LOWENTHAL & ABRAMS, PC HOLLAND & KNIGHT, LLP VORYS, SATER, SEYMOUR AND PEASE LLP About the Faculty Jennifer Ellis - Moderator Jennifer is a legal ethics attorney with the Philadelphia area personal injury firm of Lowenthal & Abrams. She also manages the firm s online presence. Jennifer is a frequent speaker and author on subjects including ethics, and law firm marketing. She authored the ABA book, WordPress in One Hour for Lawyers. Jennifer also owns a law firm marketing consulting company, where she advises firm s about their online presence. She can be reached at jennifer@lowenthalabrams.com and found online at LowenthalAbrams.com or JLEllis.net
6 Peter R. Jarvis Peter Jarvis is a partner in Holland & Knight's Portland office. Peter practices primarily in the area of attorney professional responsibility and risk management. He advises lawyers, law firms, corporate legal departments and government legal departments about the law governing lawyers. This includes, but is not limited to, matters relating to conflicts of interest, duties of confidentiality, other legal or professional ethics issues, advice on the avoidance of civil or criminal liability, law firm breakups, and questions relating to law firm or legal department structure and operation. Peter also serves as an expert witness and is an avid lecturer for public and private/in-house continuing legal education seminars. He can be reached at peter.jarvis@hklaw.net Elizabeth Treubert Simon Liz Simon is of counsel in the Vorys, Sater, Seymour and Pease LLP Washington, D.C. office and a member of the litigation group. The primary focus of her practice is business and commercial litigation, with an emphasis on the defense of attorneys, directors and officers, insurers and other professionals, and insurance coverage litigation. She counsels clients regarding professional ethics, bar admissions and attorney disciplinary procedures. Liz represents attorneys in disciplinary and fee proceedings at the administrative and trial levels. She is a member of the District of Columbia, Maryland, Virginia and New York Bars. Find Liz online at is ETSimon@vorys.com
7 Lawyer Reviews on Websites You just started your own law firm, and have been looking for ways to increase your local profile. May you link your new website to another website filled with complimentary articles or reviews about you? May you encourage satisfied clients to write a review on a website that solicits reviews? May you offer them a $50 discount on their next legal bill if they do so? Negative Reviews A client has placed a very negative review on your website, which contains a section labeled "representative client comments" or on another website which references you. May you simply remove the negative comment from your website? If you can't prevail on the other website to remove the comment, is it generally a good idea to begin thinking about an action for defamation? May you instead respond to the merits of the negative review, either on your own website or on the website of another?
8 What Can You Write? From an RPC standpoint, Is it OK to state: That you deny the allegations? That you decline to discuss the merits without an express conflicts waiver? That you regret that it is inevitable that some clients will be disappointed in spite of your efforts on their behalf and that you invite the client to contact you to discuss the matter and seek an amicable resolution? That given the generic address and the lack of specifics in the comment, you can't even determine whether the complainant was a client? All of the above? None of the above? Winning a Case You are very proud of the case you just won in spite of the other side's overwhelming evidence and your client's own quasiadmissions. Assuming no confidentiality or protective order, do the RPCs limit your ability to cite truthfully to the record in aid of demonstrating your prowess?
9 Internet Marketing You are attempting to use the internet for your firm s marketing efforts, and you are wondering what steps you may ethically take. May you list a competitor's name as a key word in a search engine company's search-based advertising program for your firm? May you arrange for a pop-up ad for your firm to appear when an internet user types the name of your competitor? Social Media Postings May you offer a discounted fee or some sort of other prize to clients or non-clients who join you social network? Do ethics advertising/marketing/solicitation rules apply to tweets and social media postings sent from a non-law firm account? Does the answer to the preceding question depend in part on your intention in making the communication or on the range of individuals that you are contacting?
10 Social Media Postings: Continued In a tweet or posting that is at least partly directed to individuals that you hope will hire you, which of the following is OK from the point of view of the RPCs: Case finally over. Unanimous verdict. Celebrating tonight"? Another great victory in Court today. Client delighted. Will you be next?"? Million dollar verdict. Tell your friends to check me out and tell them about my free consultation policy? Just published an article entitled 'How to Beat the Rap.' Let me know if you would like a copy? Are these messages subject to advertising rules? Are some of these messages ok, and others more problematic? Are these posts advertising at all? Does the audience who may see the posts matter? For example, if these go to your friends on Facebook, is the result different than if you posted these messages to the public at large? See California Formal Op Blogs You want to start a blog, and you are analyzing how the ethics rules will apply. Will a blog dedicated to work-life balance in a large law firm have to comply with lawyer marketing rules? Will a blog describing case results have to comply with marketing rules governing case results?
11 Daily Deals You enjoy using Groupon for finding great deals on goods and services. You are wondering whether there is a way to use these kinds of services to expand your legal marketing efforts. May your law firm offer daily deals? Thank You JENNIFER ELLIS PETER R. JARVIS ELIZABETH TREUBERT SIMON LOWENTHAL & ABRAMS, PC HOLLAND & KNIGHT, LLP VORYS, SATER, SEYMOUR AND PEASE LLP
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13 BIBLIOGRAPHY OF CASES AND RULES Elizabeth Treubert Simon Peter R. Jarvis Jennifer Ellis ABA Model Rule 1.1 (Competence) ABA Model Rule 1.5 (Fees) ABA Model Rule 1.6 (Confidentiality of Information) ABA Model Rule 1.7 (Conflict of Interest: Current Clients) ABA Model Rule 1.7 (Conflict of Interest: Current Clients: Specific Rules) ABA Model Rule 1.15 (Safekeeping Property) ABA Model Rule 1.16 (Declining or Terminating Representation) ABA Model Rule 1.18 (Duties to Prospective Client) ABA Model Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) ABA Model Rule 7.1 (Communications Concerning a Lawyer s Services) ABA Model Rule 7.2 (Advertising) ABA Model Rule 7.3 (Solicitation of Clients) ABA Model Rule 7.4 (Communication of Fields of Practice and Specialization) ABA Model Rule 8.4 (Misconduct) Lawyer Reviews Hunter v. Virginia State Bar, 285 Va 485, 744 SE2d 611 (2013) Searcy v. Florida Bar, 2015 WL (ND Fla 2015) In re Loughlin, 148 So3d 176 (Louisiana 2014)
14 In re Skinner, 292 Ga. 640, 740 S.E.2d 171, 2013 ILRC 1509 (2013) Lawyer Internet Marketing North Carolina Legal Ethics Opinion (April ) Habush v. Cannon, 828 N.W.2d 876 (Wis. Ct. App. 2013) In re Naert, 2015 WL (S.C. Sup. Ct. Sept. 30, 2015) Social Media Postings California Formal Opinion NYC Ethics Opinion Pennsylvania Bar Association Ethics Opinion Philadelphia Bar Association Ethics Opinion , 2011 North Carolina Ethics Opinion 8 New York State Ethics Opinion 1062 (2015) New York State Ethics Opinion 967 (2013) New York State Ethics Opinion 972 (2013) New York State Ethics Opinion 912 (2012) New York State Ethics Opinion 899 (2011) New York State Ethics Opinion 848 (2011) Blogs ABA Formal Opinion New York Legal Ethics Opinion 967 (June 5, 2013) Hunter v. Va. State Bar ex rel. Third Dist. Comm., 285 Va. 485 (Va. Feb. 28, 2013) Bates v. State Bar of Ariz., 433 U.S. 350 (1977)
15 State Bar of California, Standing Committee on Professional Resp. and Conduct Formal Opinion California Interim Formal Opinion Daily Deals Alabama State Bar, Formal Opinion (2012) American Bar Association Formal Opinion 465 (2013) Indiana State Bar Association Legal Ethics Committee, Advisory Opinion 1 Maryland State Bar Association Committee on Ethics, Opinion (2012) New York State Bar Association Committee on Professional Ethics, Opinion 897 (2011) North Carolina State Bar, Formal Opinion 10 (2011) Pennsylvania Bar Association, Advisory Opinion (2011) South Carolina Bar Ethics Advisory Committee, Advisory Opinion (2011) State Bar of Arizona, Formal Opinion (2013)
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