The use of social media by lawyers is only going to grow in the coming years. State bars across the country are in a race to regulate it, but their limited knowledge of technology means that they have a difficult time defining the ethical boundaries.
The New York State Bar Association recently took matters into its own hands and produced a set of Social Media Ethics Guidelines with useful guidelines to avoid ethical problems when using social media. The best resource for lawyers practicing in California is to go to our State Bar site and view “Ethics and Technology Resources.” You will find a plethora of ethics opinions, Rules and articles to keep you up to date on this subject area.
Before you do, keep in mind that Rule 1-400 on advertising and solicitation is currently being reviewed by the Rules Revision Commission (which I am on) to see if we can make changes that will make it easier to apply to electronic advertising. We are also hotly debating whether to keep the advertising standards. Those standards create a presumption that the lawyer has violated the Rule.
Rule 1-400 will likely change; that I am certain of. But how it will change is currently up for debate. In the meantime, Christina Harvey, Mac McCoy and Brook Sneath recommend the following guidelines (with my California spin put in):
- First, social media profiles and posts may constitute legal advertising, so review California Rule 1-400 before posting on Twitter, blogging and updating your website.
- Avoid making false or misleading statements. Don’t say things like “I win all my cases,” unless you have actually done so and don’t say things like “I am the very best lawyer in California.”
- Avoid making prohibited solicitations. Remember, a solicitation is when you contact someone who you do not know and try to sell them legal services. Some contacts are allowed; some not. Review Rule 1-400.
- Never disclose confidential information about a client on a blog so that the public can connect the information with your client.
- Do not assume you can “friend” judges.
- Avoid conversations with represented parties.
- Be cautious in conversing with unrepresented parties.
- Beware of inadvertently creating attorney-client relationships (don’t be “engaged without the ring”).
- Beware of the unauthorized practice of law (because posts can be read by people in every state).
- Tread cautiously with testimonials, endorsements and ratings; i.e., don’t have your mom and best friend do them to “up” your ratings.
One issue that frequently comes up in my practice is lawyers wondering what they can do when a client basically defames them on a ratings site. This one is tough, because the tendency is to rebut the allegations by stating what obstacles the client put in your way, or worse.
However, the bottom line here is that you must keep your client’s confidences and resist debunking their statements by using file information to contradict their allegations if it is embarrassing or detrimental to the client.
It seems unfair, but I would advise not doing anything about it unless you really want to pay for a big battle and are prepared to pay to have records sealed. Many clients, if confronted, will remove posts that are not accurate; they don’t want a battle as much as you don’t want one.
Have a great 2016, and happy marketing!
Carol M. Langford is currently serving on the Rules of Professional Conduct Revision Commission. She defends lawyers before the State Bar and is a lecturer in law at UC Berkeley, Boalt Hall School of Law.