Lawyers And Social Media: The Ever-Changing Landscape

Randy Wilson

Social Media is a rapidly changing landscape, with new developments happening every day. A new social media platform like Pinterest can suddenly appear seemingly out of nowhere, and become of value (and concern!) very quickly. And an existing platform that you already use, like LinkedIn, might make big changes that impact your practice, without any warning or fanfare.

Whether it’s learning about a new platform or digging deeper into an existing one, it’s worth taking the time to understand these changes. As attorneys, there are ethical concerns when it comes to communicating with prospective and existing clients through social media. In addition, according to new duty of competence rules adopted in August 2012 by the ABA, lawyers must now keep abreast of changes in technology as it affects their practice.

In this ever-changing field, a lot has evolved since my last article on social media and the law.  As a follow up, here are some important recent developments.

Google+: In this relatively new social media platform, you can organize groups of people according to topic. For attorneys, this could mean creating one circle of existing clients and another circle for prospects. The good news is that you can isolate groups and communicate different messages. The bad news is that if you aren’t familiar with the technology, you could easily broadcast sensitive communications to the wrong people.

Google + also brings up issues around real-time communications: An ABA rule – and soon to be California rule –  prohibits direct communication through real-time electronic means. For example, if there is a chat group and someone asks advice on a legal matter, you are not allowed to offer your legal services, since this could be considered taking advantage of, or putting undue pressure on, an individual under emotional stress.

The Bottom Line: Take care with your message, and where you send it. Don’t use real-time chat to offer your services. And of course, no matter what circle you reach out to, make sure what you are saying is ethically sound.

Pinterest: Pinterest went from zero to more than 10 million hits in six months. In this image-sharing website, you can create a collection of related visual images and group them together. An attorney might use Pinterest, for example, by creating a board with an image of an legal article cover and encourage people to click on it, go to his/her site, and download that article. Using interesting photos and artwork, it could also be used to market an event.

Pinterest does have a downside for attorneys: Because it allows you to ”repin” any image without any rights to it, the potential for copyright or trademark infringement exists. Pinterest is becoming more sophisticated about this issue; it now provides its users with both trademark and copyright complaint forms.

The Bottom Line: Attorneys should use caution when using images pulled from other sources on Pinterest. Pinterest itself encourages “repinning” from the original source. Attorneys in particular should make sure they take the extra step of tracking down the original source of an image they liked on Pinterest . If you are trying to impress people with your legal savvy and blatantly use images that aren’t yours, this could be a turnoff to potential clients. While it’s unlikely you will get sued, the public holds attorneys to a higher standard.

Groupon: Groupon allows businesses to broadcast special offers for goods and services. Attorneys who do estate planning and, for instance, offer a set price for an estate plan, could use Groupon to offer a discount for such services. Using Groupon or a similar service, attorneys can broadcast a discounted offer and clients who purchase the Groupon can present the coupon to the attorney.

The ethics of platforms like Groupon are being hotly debated. Some state bars, like Alabama and Indiana, have concluded that they are in violation of professional rules of conduct because of the rules regarding fee sharing with non-lawyers. The majority of state bars, however, have concluded that rather than fee sharing, sites like Groupon involve paying a fee for advertising, and they have allowed it.

The Bottom Line: California attorneys should keep an eye out for an ethics opinion on this subject before putting too many resources into marketing services using this kind of a platform.

LinkedIn: LinkedIn has been around awhile, but is continuously making small changes that might not appear on your radar screen. One of these changes is the renaming of the Specialties section to Skills and Expertise. As Specialties, it was clear that if you were a family lawyer and didn’t have certification for this legal specialty, for instance, you would be in violation of ethics rules. With the new label, however, this becomes a little more ambiguous and it may be safer to list family law under this section.

Bottom Line: To be safe, steer clear of adding anything to the Skills and Expertise you aren’t licensed in. Instead, use the Summary section to describe your specific practice skills and avoid the issue altogether.

Facebook: Good news for lawyers – and everyone else – on the privacy front with Facebook. The company has been repeatedly sued for making users review complicated privacy setting in order to prevent certain types of information from being shared publicly. As part of the settlement terms with the Federal Trade Commission, Facebook has agreed to alert members to any public sharing of information upfront. This should make it easier for lawyers and others to avoid embarrassing disclosures that attorneys thought were only being shared with friends or family.

The Bottom Line: Don’t use Facebook for anything that could be construed as confidential information. And even if you know that something isn’t getting shared publicly, think hard about whether you want to share it anyway. If you were ordered by a court to provide any and all information from your Facebook profile, you may not be able to shield that “private” information from becoming part of the public record.