Law Firms, Ethics, and Use of Social Media
Many law firms have embraced the use of social media, such as Facebook, to connect with potential clients. Individual lawyers use platforms like LinkedIn and Twitter to share and communicate. With in-person networking and gatherings at a standstill, more firms and lawyers are looking at social platforms to reach out to clients and potential clients. What ethics issues should be kept top of mind?
If you or your firm have ramped up participation in social media as part of your marketing efforts there are a number of opinions and rules of professional conduct that apply and should be reviewed in light of your efforts. There are many rules and opinions that apply to a law firm website – such as characterization of specialties and use of testimonials – that should be considered for your firm’s social presence too.
Confidentiality
NC Rules of Professional Conduct 1.6 outlines the requirement for lawyers to maintain client confidentiality. Be cautious and considerate when promoting outcomes and cases. The confidentiality rule applies to lawyers whether you are posting professionally or “personally”.
Communication and Advertising
The NC Rules of Professional Conduct 7.1 – 7.5 cover communications and advertising guidance for attorneys. Rule 7.1 specifies that a lawyer should not make false or misleading communications about the lawyers’ services, including material misrepresentation or omission of facts necessary to make the statement considered as a whole not misleading. What could be considered misleading? Alice Neece Mine outlines some communications and advertisements that were brought to the Grievance Committee or the Disciplinary Hearing Commission (DHC) and found misleading – all before social media was an adopted communication and advertising medium. High profile cases that illustrate the concept of misleading communication include In re: Svitlana E Sangary, wherein Ms. Sangary posted pictures of herself photoshopped with celebrities on her public website, and in South Carolina an attorney was reprimanded for exaggerating his credentials. These are egregious examples, but serve as cautionary tales.
RPC 7.2 directly covers advertising legal services. The rule, in part, covers exchanging something of value for promotion. A recent NC 2019 Formal Ethics Opinion 6 | Offering Incentive To Engage With Law Practice’s Social Networking Sites in summary suggests “depending on the function of the social media platform, offering an incentive to engage with a law practice’s social media account is misleading and constitutes an improper exchange for a recommendation of the law practice’s services.”
RPC 7.3 discusses direct solicitation of potential clients. NC 2011 Formal Ethics Opinion 8 | Utilizing Live Chat Support Service on a Law Firm Website examines the permissibility of using live chat to engage potential clients on websites, which is now common on social platforms as well. The opinion suggests that since the potential client clicks a button to engage in the chat, and can also leave the chat at any time, that chat features are permissible.
The State Bar of California published an interesting ethics opinion in the form of a quiz to help lawyers determine whether their communication falls under regulated/commercial speech or free speech. The 2012 opinion posits “under what circumstances would an attorney’s postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?”. The opinion goes through a hypothetical of an attorney who has “friends” both professional and personal on a social media site. Then, based on sample posts like “Case finally over. Unanimous verdict! Celebrating tonight” and “Just published an article on wage and hour breaks. Let me know if you would like a copy”, the opinion breaks down whether these statements constitute communication concerning the availability for professional employment, and thus subject to regulation.
Supervision
NC Rules of Professional Conduct 5.1 – 5.3 all focus on the requirements regarding supervision. Lawyers are required to make reasonable efforts to ensure other lawyers and non-lawyer assistants in the firm conform to the Rules of Professional Conduct. NC RPC 5.3 focuses on supervision of non-lawyer assistants, stating in Comment [3]: “a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations”. If your firm uses internal or external marketing services, it is important to understand that you have a duty to supervise and review their work with an eye towards your ethical obligations.
Conflicts and UPL
In addition to the rules and opinions above, the Wisconsin Lawyer offers some thoughts about additional risks that need to be considered when marketing and communicating via social media. They include:
- Inadvertently establishing a lawyer-client relationship;
- Providing legal advice to a nonclient without checking for potential conflicts of interest;
- Making snap decisions on new client intake;
- Engaging in the unauthorized practice of law or practicing out of jurisdiction.
Be careful to follow best practices with intake, be considerate about responding in way that could be construed as legal advice, avoid beckoning communication without proper disclaimers, and consider specifying the jurisdictions your firm is licensed to practice in.
Conclusion
This post focuses on lawyers and law firms using social media for marketing and client development. It is not comprehensive and not intended to be legal advice. There are many other considerations regarding lawyers ethical use of social media, including engaging in ex parte communication; making deceptive requests to gather information; failing to advise clients of the risks inherent in using social networking sites; directly contacting an adverse party; and more. NC Opinions/Rules are subject to change or update. To keep current, lawyers should check advertising/marketing/solicitation rules on the North Carolina State Bar webpage.