Navigating the Ethical Pitfalls of Online Networking - ABA YLD 101 Practice Series

By Christine E. Mayle

Social networking websites like MySpace, Facebook, Twitter, and LinkedIn are reimaging the internet and expanding the ways that people connect and network. As these sites have grown in number and popularity, many lawyers have jumped in with both feet -- especially young lawyers who are already accustomed to communicating via text, IM, and online wall posts. While the internet provides many new and exciting marketing opportunities for attorneys young and old, it also creates ethical minefields that a lawyer must navigate to effectively -- and ethically -- take advantage of online networking tools.

Tip 1: Know Your Advertising Rules.
Although it is not yet clear where all of the various forms of online networking fall within the spectrum of "lawyer advertising," there are several ethics opinions that clearly indicate that a website is an advertisement 1. In addition, ABA Model Rule 7.2 states that a lawyer may advertise through "electronic communication," and some ethics rules go one step further by specifying that all "computer-accessed information" regarding a lawyer's or law firm's services on the internet are subject to the general regulations regarding advertising 2.

Because a Facebook page, LinkedIn profile, and even a Twitter "tweet" can be considered a "website" -- or, at the very least, "computer-accessed information" -- there is a good possibility these forms of online communication are subject to rules governing lawyer advertisements generally. Unfortunately, many of these advertising rules were not crafted with the realities of Web 2.0 in mind. For example, some states require that all attorney advertisements contain very specific disclaimer language 3, and some even require attorneys to submit all advertising materials to the state Bar or similar organization for pre-approval prior to dissemination 4. It is therefore very important that you know the rules specific to your jurisdiction before engaging in any online networking that is most likely, at least by current standards, an "attorney advertisement" subject to your state's advertising rules and regulations.
 
Tip 2: Tread Carefully With Online Testimonials.
Many online professional networking sites include a function whereby others can "recommend" or "endorse" your legal work by writing a personal testimonial for your public profile. For example, LinkedIn users can voluntarily "Recommend" the services of others, and LinkedIn actively encourages users to "Get Recommended" by soliciting endorsements from business associates via e-mail.

Be very careful here. Some states prohibit attorneys from using any testimonials in their advertising materials 5. If you are licensed in one of these jurisdictions, you cannot display any "Recommendations" or similar testimonials in your online profiles. Other jurisdictions allow testimonials but prohibit attorneys from soliciting testimonials from third parties like former clients and colleagues 6. Finally, even in those jurisdictions that permit the use of testimonials in attorney advertising, lawyers cannot publish a testimonial containing "unverifiable" claims regarding their legal services (e.g., "Jane Doe is the best lawyer in town") 7.

Tip 3: Don't Describe Yourself as an "Expert"
Most states have adopted some version of ABA Model Rule 7.4 which provides that a lawyer "shall not state or imply that a lawyer is certified as a specialist in a particular field of law unless . . . the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the [ABA.]." In addition, many states prohibit attorneys from describing themselves as "experts" because the term "expert" amounts to an "unsubstantiated comparison." 8

Thus, your online profiles should not reference any "specialty" areas unless you have been certified as a "specialist" by the appropriate state authority. In addition, you should avoid the term "expert" altogether -- especially on LinkedIn. On that site, lawyers can become designated as "LinkedIn Experts" simply by answering questions posted in the "Law and Legal" discussion area. LinkedIn users gain "points of expertise" each time a questioner picks the user's answer as the "best" answer to the posted question. The more "points of expertise," the higher the user appears on the lists of experts.

Not only does this specific LinkedIn feature raise some problems associated with attorneys' use of the term "expert," there are other ethical implications as well. For example, by answering an online question in this manner, a lawyer may inadvertently create an attorney-client relationship. In addition, if the questioner is located in another state where the attorney is not licensed to practice law, answering the posted question may constitute unauthorized practice of law 9. It is best to avoid this feature and focus on the other aspects of LinkedIn that make it an attractive online marketing tool -- including online "networking groups" sponsored by bar associations, colleges, law schools, and trade associations.

Tip 4: Remember That Solicitation Rules Apply Online.
An attorney "solicits" legal work by contacting a prospective client "when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." 10 As a general rule, an attorney may not solicit work from prospective clients via in-person communications unless narrow exceptions apply 11. The ABA Model Rules specifically state that in-person contact includes "real-time electronic [communication.]" 12 In addition, an attorney may solicit work via written communications, including e-mail, only if specific disclaimers are included in the written materials 13.

It seems unlikely that an attorney's mere presence on an online social networking site would amount to "solicitation" under the relevant professional rules. There are many features on these websites, however, that may facilitate "real-time" -- or at least "semi-real-time" -- communication. For example, a Twitter "tweet" could be viewed as real-time communication and, if so, could also be an unethical "in-person solicitation" depending on the content and recipient. In addition, even if more-properly viewed as a written solicitation, a "tweet" soliciting legal work would need to include the appropriate disclaimer language.

Tip 5: Never Publish Any Client-Specific Information.
This one may seem like a no-brainer, but lawyers may unwittingly disclose client-specific information through careless and off-the-cuff postings on social networking sites. For example, a simple Facebook status update stating you're "drafting a motion to dismiss a complaint as time-barred" could reveal case strategy 14. Tweeting your frustration with "a client that just doesn't get it" -- immediately after a meeting with that client -- could reveal identifying (and unfavorable) details about that client. Remember that "[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation." 15

A good rule of thumb is to assume everything that you put on the web will be viewed by everyone in your law firm, all of your clients, all of your opposing counsel, every judge in the country, and your mom. So, acquaint yourself with the rules before you advertise, think before you text, and pause before you post.


1 See C.C. Holland, Mind the Ethics of Online Networking, Law.com Legal Technology (November 6, 2007) www.law.com/jsp.legaltechnology/pubArticleLT.jsp?id+1194257030032 (last visited May 18, 2009).
2  See, e.g., Louisiana Rule of Professional Conduct 7.6(d).
3  See, e.g., New York Rule of Professional Conduct 7.1; see also ABA Model Rule 7.3(c).
4  See, e.g., Nevada Rule of Professional Conduct 7.2A (stating that failure to file an attorney advertisement with the Bar within 15 days of its initial dissemination is grounds for disciplinary action).
5  See, e.g., New York Rule of Professional Conduct 7.1(c)(1); Florida Rule of Professional Conduct 4-7.2(c)(1)(J).
6  See Ohio Advisory Opinion 2004-7 (stating that an attorney may not request that others recommend or promote the use of the lawyer's services).
7  ABA Model Rule 7.1 (an attorney cannot "make or use false, misleading, or nonverifiable communication about the lawyer or the lawyer's services"); see also Opinion 08-03, Utah State Bar Ethics Advisory Opinion Committee (Feb. 23, 2009).
8  See, e.g., White Paper, ABA Commission on Advertising, A Re-Examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies, July 1998 (stating that use of the term "expert" violates "the ban against providing unsubstantiated comparison"); see also Ohio Advisory Opinion 2005-6 ("Lawyers should not hold themselves out as experts.").
9  See Stephenson, Correy, The Dangers of Online Networking, www.allbusiness.com/legal/legal-services-lawyers/12301668-1.html (last visited August 26, 2009).
10  ABA Model Rule 7.3(a).
11  For example, under ABA Model Rule 7.3(a), an attorney is allowed to solicit work from fellow lawyers, family members, and close personal friends or prior.
12  ABA Model Rule 7.3(a).
13  ABA Model Rule 7.3(c).
14  See Stephenson, Correy, The Dangers of Online Networking, www.allbusiness.com/legal/legal-services-lawyers/12301668-1.html (last visited August 26, 2009).
15  ABA Model Rule 1.6, Cmt [2].


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About the Author

Christine E. Mayle is a shareholder with Cooper & Walinski LPA in Toledo, Ohio, the nation's largest majority-women-owned law firm. Her practice is primarily in complex civil litigation, including Section 2 of the Uniform Commercial Code, indemnity disputes, breach of contract, tortious interference with contract, fraud, and other business torts. She may be reached at mayle@cooperwalinski.com

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