ABA Model Rule 7.3 prohibits real-time contact [with prospective clients], said Charles H. Gardner, special counsel, Much Shelist, Chicago. An example would be responding to a tweet from someone who says they’ve just been arrested for shoplifting by saying that you’re an attorney who handles shoplifting cases at a discount for your Twitter followers, he said.
Confidentiality can also become a problem on social media, Gardner said. ABA Model Rule 1.6 says that lawyers cannot reveal information relating to the representation of a client, he said.
“The confidentiality rule applies across the board,” Gardner said. “It’s not just matters that are communicated to you in your confidential representation, but any information relating to your representation, whatever the source. To me that says we have to be careful about confirming or denying public information.”
There are also FTC guidelines to consider. “Think of Model Rule 8.4 being the vehicle through which the FTC Act applies,” Gardner said. “Section 5 of the act prohibits deceptive or unfair acts or practices in advertising. Rule 8.4 says it’s professional misconduct for a lawyer to commit a criminal act that reflects adversely on honesty or trustworthiness or to engage in dishonesty, fraud, deceit or misrepresentation … Violations of the FTC rules can result in a civil penalty of up to $11,000 [each].”
In 2009, the FTC put out guidelines regarding endorsements and testimonials. “What these were meant to do was to tell any advertiser doing word-of-mouth marketing that you have to disclose actual results,” Gardner said. “You can’t just say ‘these results are not typical.’ You have to say more than that. You have to tell people what the typical results are that they can expect.”
“Material connections between advertisers and endorsers” must also be disclosed, Gardner said. “I think of this in the old days as payola, when radio DJs were getting paid off by record companies to play a record. The FTC said if you’re getting paid to promote a product, you have to disclose that.
“The same thing now applies to bloggers,” he added. “If you’re an attorney and you have a blog or you have word-of-mouth marketers blogging on your behalf, now you have to be more conscious about disclosing your material connections, and that goes a little bit to Rule 7.2b, which says a person shouldn’t give someone something of value for recommending them.”
How are you going to disclose those material connections in a clear, concise way? Having a link to that information — the office you’re working at, the lawyer’s name, an identifying feature of the office — is OK if the link is prominent and clear, Gardner said.
In March, the FTC put out guidelines to give more information about what is needed for disclosures. “Generally, the FTC guidelines allow abbreviated and linked disclosure, and generally the Rules of Professional conduct allows them, but in a much more restrictive way,” Gardner said.
William Slease, chief disciplinary counsel, Disciplinary Board of the State of New Mexico, and Peter J. Winders, general counsel, Carlton Fields, Tampa, also participated in this webinar.
This ABA continuing legal education webinar was sponsored by the Center for Professional Responsibility, Law Practice Management, Solo, Small Firm and General Practice Division, Young Lawyers Division and the Center for Professional Development.