Legal Ethics and Advertising in the Social Media Era

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1 Legal Ethics and Advertising in the Social Media Era By Michele Ballard Miller Miller Law Group Prepared in connection with the Federation of Defense & Corporate Counsel s Lunch & Learn Webinar Series Singing in the Rain Learning how to Network, Ethically and Effectively, in a Brave New World! December 12, 2012

2 LEGAL ETHICS AND SOCIAL MEDIA THE CURRENT LANDSCAPE Lawyers across the country are increasingly using the Internet and social media from LinkedIn, Facebook and Twitter to blawgs and law firm websites -- to grow their legal practices. But as attorneys are embracing these new age marketing tools, it is critical to step back and consider how traditional ethical considerations may place limits on what attorneys can do in the online marketing realm. Among the ethical rules that come into play are those that regulate attorney advertising, 1 solicitation of clients, creation of the attorney-client relationship, confidentiality, unauthorized practice of law, conflicts of interest, and conflicts of law. Most social media tools that lawyers are finding useful in their marketing efforts were not developed with lawyers ethical restrictions in mind. And unfortunately, new forms of online marketing through social media do not always lend themselves neatly to existing ethical rules, many of which are specific to television and print advertising, as they have been on the books for a long time before the social media revolution. The American Bar Association ( ABA ) and some states are attempting to re-tool their rules to catch up with technology, but in many cases the legal ethics rules remain outdated and attorneys are scrambling to figure out how to stay current with their marketing efforts while avoiding ethical violations. 2 This paper will focus on how online marketing may implicate ethical rules regarding attorney advertising. IS IT AN ADVERTISEMENT? The initial question presented is whether the social media or online tool at issue is truly an advertisement. Generally, states may regulate attorney communications that amount to commercial speech. The U.S. Supreme Court has ruled that speech is commercial if it proposes a commercial transaction. 3 Furthermore, if commercial speech/advertising is truthful and non-deceptive, but a state has a significant state interest and promulgates regulations that directly advance that interest, the regulations must be a reasonable fit that are "narrowly tailored to achieve the desired objective." 4 ABA Model Rule 7.2 permits attorney advertising through written, recorded or electronic communication, including public media, provided the advertising meets a number of requirements. The Rule provides, in pertinent part: (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. 1 Complete bans on attorney advertising are unconstitutional, although states may regulate attorney advertising. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). 2 It is important to note that ethical rules governing online conduct and lawyer advertising is jurisdiction-specific. Therefore, lawyers should research the law of all jurisdictions that may apply to their conduct to ensure compliance. A helpful guide (updated in December 2012) to the differences between the ABA Model Rules on advertising and applicable state rules is available from the American Bar Association s website at itation_rule_differences_update_for_virginia_dec_1_2012.authcheckdam.pdf. 3 Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 422 (1993). 4 Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989). 1

3 (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. In a comment to this Rule, the ABA recognizes that [E]lectronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But one must also be mindful of Rule 7.3(a) regarding the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client. 5 Another comment to the Rule specifies that it permits lawyers to publicly disseminate the lawyer s name, firm, contact information, service provided and similar information that might invite the attention of those seeking legal assistance. 6 One of the key issues lawyers face in the social media age is determining when online activity amounts to an advertisement and/or solicitation regulated by ethics rules. There are a number of ethics opinions and rules that specifically state that a lawyer or law firm s website is an advertisement, 7 and some go further to regulate all computer accessed information about a lawyer s services. 8 ADVERTISING RESTRICTIONS The restrictions that apply vary greatly by state, and may include disclaimer, filing and record-keeping requirements. Below is a review of some common requirements that may apply to regulate lawyer online and social media activities and communications. 1. Disclaimers ABA Model Rule 7.3(c) requires special labeling on lawyers commercial communications. In particular, the rule specifies: Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is [a lawyer or has a family, close personal, or prior professional relationship with the lawyer]. 5 ABA Model Rule 7.2, Comment 3. 6 ABA Model Rule 7.2, Comment 2. 7 See, e.g., Texas Disciplinary Rules of Prof l Conduct, R. 7.07(c), Comment 1. 8 See, e.g., New York Rules of Prof l Conduct R. 1.0(c). 2

4 And New York, for example, requires that ATTORNEY ADVERTISING be affixed to home page of a website, and in the subject line of s. 9 Depending on the specific rules of a state, such disclaimer language may need to be included on a law firm s website, LinkedIn profile, and other online commercial content. 2. Filing The restrictions do not end with disclaimers. A number of states also require that lawyers file their attorney advertising with the state bar. However, Florida, for example, has clarified that although websites are advertisements, they do not need to be filed with the State Bar. Furthermore, a number of states do not require filing if the advertisement includes narrowly defined information, such as contact information, area of practice, and bar admissions. 3. Record-keeping Many states also require that attorneys keep records of advertisements. For example, Michigan rules require lawyers to keep on file for two years a recording or copy of an advertisement, along with information about where and when the advertisement was made. 10 New York mandates retention of copies of advertisements for three years, and advertisements made in computer-accessed communications, such as blogs are to be retained for one year. 11 These rules also require that information in websites covered by the rule be recorded or copied upon the posting of the site, after any material changes to the site, no less frequently then every 90 days. CONSIDERATIONS FOR ADVERTISING COMPLIANCE What are some compliance best practices to avoid running afoul of advertising rules as applied to online communications? First, depending on their jurisdiction, lawyers may want to consider treating revisions to websites and LinkedIn profiles as advertising and strictly following state rules for such updates with respect to filing and/record-keeping. Similarly, a lawyer s Tweets could also be subject to advertising rules, particularly in states that regulate computer accessed information regarding a lawyer s services. Depending on the nature of the information being conveyed and the jurisdiction, a Tweet could be considered a solicitation of legal work through real-time electronic communication. And, arguably, blawgs and social networking profiles may need to be preserved and recorded with every new comment or post by a visitor to the site, despite the seeming impracticality of this practice. RECOMMENDATIONS AND ENDORSEMENTS Another important consideration is whether recommendations on LinkedIn or similar sites constitute advertising in the form of testimonials. In particular, LinkedIn profiles permit connections or others who visit the page to post comments and/or click a button to recommend the lawyer. Could this conduct violate ethical rules? 9 New York Rules of Prof l Conduct R. 7.1(f). 10 Michigan Rules of Prof'l Conduct R. 7.2(b). 11 New York Rules of Prof l Conduct R. 7.1(k). 3

5 The ABA Model Rules address communications regarding a lawyers services. Model Rule 7.1 specifies that an attorney may not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Comment 2 to ABA Model Rule 7.1 further provides that a truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation. Comment 3 to Rule 7.1 elaborates further: An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. A number of states heavily regulate, and some even ban, the use of testimonials or recommendations in attorney advertising. For example, New York bars the use of testimonials from a client in a current matter unless the client gives written consent, and any client or former client testimonial must contain a disclaimer that Prior results do not guarantee a similar outcome. 12 In California, testimonials must be accompanied by a disclaimer indicating that the testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter." 13 Other states, such as Ohio, permit testimonials but prohibit the lawyer from soliciting the testimonial or from allowing unverifiable claims regarding the attorney s services. 14 Whether these rules would apply to testimonials or endorsements posted independently by third parties not at the attorney s behest on sites such as LinkedIn or Avvo is an open question, and the answer will likely vary by jurisdiction. In particular, there is a 12 New York Rules of Prof l Conduct R. 7.1(d), (e), provides: (d) An advertisement that complies with paragraph (e) may contain the following:... (3) testimonials or endorsements of clients, and of former clients; (e) It is permissible to provide the information set forth in paragraph (d) provided: (1) its dissemination does not violate paragraph (a); (2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; (3) it is accompanied by the following disclaimer: Prior results do not guarantee a similar outcome ; and (4) in the case of a testimonial or endorsement from a client with respect to a matter still pending, the client gives informed consent confirmed in writing. 13 California Rules of Prof l Conduct R (E) Standards. 14 Ohio Rules of Prof l Conduct R. 7.1 (prohibits the lawyer s use of false, misleading, or nonverifiable communication about the lawyer or the lawyer's services. ) 4

6 strong argument such postings are not controlled by the attorney nor attorney communications, but perhaps are nothing other than a new twist on the old-fashioned word of mouth way of communicating an attorney s reputation. ARE YOU AN EXPERT? Many states regulate attorneys use of the word expert. The term might be allowed only if the attorney is certified as a specialist by the designated state authority, such as in California. 15 Otherwise, it could be an unsubstantiated comparison. Attorneys should carefully avoid characterizing themselves as an expert unless certified by the appropriate state authority. It is also worth noting a special LinkedIn feature that could, arguably, cause problems in states with expert regulations. Linkedin users can accumulate points of expertise by posting answers in certain areas of the website, and the more points of expertise, the higher the user will appear on lists of experts. Whether a lawyer who accumulates points of expertise in an area of law violates rules regarding use of the word expert is one of the numerous questions that the states professional conduct rules have yet to address. PRACTICAL CONSIDERATIONS It will take time, possibly years, for ethical rules regarding attorney advertising and related matters to catch up with the ever-changing world of online marketing. In the meantime, to avoid possible ethical violations, common sense and caution should prevail when evaluating whether an online marketing practice is governed by the ethics rules in your state. Practical considerations to stay compliant include: Be aware that online profiles, blawgs, and websites may be regulated as attorney advertising and/or solicitation. Make sure that all attorneys in your firm are aware of any ethical restrictions on online marketing. In your online or traditional advertising, never create unrealistic expectations or convey misleading information about your firm or attorneys. Be aware of and comply with any advertising filing and record-keeping requirements in your state. Finally, as mentioned above, always use prudence and common sense in your marketing efforts. 15 CA Rules of Prof l Conduct R (A lawyer cannot state that a member is a "certified specialist" unless the member holds a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted certification.) 5