FAMILY LAW: Common Ethical Pitfalls of Digital Marketing

Vol. 31 No. 1

By

Sharon D. Nelson (snelson@senseient.com), Esq., is president and John W. Simek (jsimek@senseient.com) is vice president of Sensei Enterprises, Inc., a legal technology, information security, and digital forensics firm based in Fairfax, Virginia.

It’s no wonder that so many lawyers get into trouble inadvertently—always playing catch-up to master the latest in Facebook, LinkedIn, Twitter, blogs, videos, website optimization, online lawyer referrals, and podcasts, to name only a few of the shiny new marketing tools of the digital age. Mind you, there are a few bad apples flaunting the rules, but many more lawyers are simply haplessly trying to figure out what’s proper and what’s not. Herewith, a guiding hand.

Read the rules. For purposes of this article, we are going to talk about the ABA Model Rules of Professional Conduct because all but one state have adopted them, although not always verbatim. Study your own state rules, but know that most share the common threads we’ll discuss.

First, bone up on Rules 5.1 through 5.3. As an attorney, you have a duty to supervise junior lawyers and nonlawyers who work for you. There’s no such thing as claiming that “Bob” or “Jill” had responsibility for the firm’s website or social media posts. The buck stops with the lawyer/supervisor of the person in question. Then read through Rules 7.1 through 7.5, which largely govern advertising by lawyers.

Social media, websites, blogs, and videos. The big three social media sites for most lawyers are Facebook, LinkedIn, and Twitter. We have heard attorneys claim that social media usage does not constitute advertising. Rare is the case we have seen where social media use is not effectively advertising—that is precisely why the lawyers are there.

Common problems. So what are the ethical violations we see most often in connection with social media?

  1. Deceptive or misleading postings. You are not John Smith & Associates if you have no associates.
  2. The inadvertent formation of an attorney-client relationship or an attorney–prospective client relationship. Forms that invite the site visitors to describe their problems without a very visible disclaimer are particularly problematic. The lines are blurry on social media. As many experts have noted, it is best to take an initial online contact offline at the earliest opportunity to avoid the possibility of unintentionally forming an attorney-client relationship.
  3. Advertising a “specialty.” In LinkedIn, make sure to leave the “specialization” field blank, unless your listing conforms to state ethical rules.
  4. Citing case victories without a disclaimer. Do remember to state that the outcome of a case is dependent on the specific facts of the case.
  5. Making claims that cannot be substantiated (e.g., “the most respected personal injury law firm in Podunk”). Even a domain name can get you into trouble here: www.bestvirginiafamilylawyer.com would clearly not pass muster.
  6. Allowing someone to recommend you on LinkedIn using language that would not be permissible for you to use (e.g., “Jane is clearly the most respected elder law attorney in the country”). Remember, you have to approve LinkedIn recommendations before they become public, so you must ensure that they conform to the ethics rules. If you “trade” recommendations with someone, you are likely in violation of Rule 7.2 because you have offered something of value in exchange for a recommendation.
  7. Using copyrighted content without proper licensing. We used to see music on websites all the time, but now it tends to be photos and videos. There are technologies that scour the Internet looking for copyrighted material.
  8. Failing to note that something is a dramatization or that the person speaking is a nonlawyer.
  9. Failing to supervise a subordinate who places something on the Internet in violation of the rules.
  10. Appearing to offer services in a jurisdiction in which you are not authorized to practice.
  11. Having a ghost blogger write your blog. There is no hard-and-fast information on this, but most ethical experts seem to agree that it is misleading to put your name on something you didn’t write. However, a law firm blog to which various lawyers contribute would not present any issues.

How are you likeliest to get caught? By your competition. Attorneys routinely turn in other attorneys to their state bars. Moreover, some state bars are trolling websites and discovering ethical violations on their own.

Daily deal sites. The question here is whether sites like Groupon and its brethren violate Rule 5.4, prohibiting fee sharing between lawyers and nonlawyers. So far, New York, North Carolina, and South Carolina have said that using such sites does not violate the rules. Indiana has suggested that such sites probably do. Don’t you love certainty?

The essence of the reasoning of the three states that approved the use of these sites is that no fee sharing is involved; rather, the monies given to these sites constitute a charge for advertising. Many states have not yet spoken on this issue, and some seem a tad reluctant to give these “discount” sites their blessing.

Avvo.com and JustAnswer.com. We certainly have a problem with a site that advertises the dispensing of free legal advice. Can a lawyer participate in such a site and assume that a disclaimer will provide protection? “Get Free Legal Advice from Top-Rated Lawyers” is the headline from JustAnswer.com. How can this not be trouble? Some of the answers we’ve read were clearly legal advice, as opposed to general legal information.

Avvo.com allows client testimonials and won’t allow lawyers to remove them. Testimonials that violate the professional rules, at the very least, create a disturbing impression. Clearly, an attorney may not encourage such testimonials, but simply having them associated with the attorney seems problematic. Attorneys who claim their profiles on Avvo.com effectively give up control of some of what may be posted on their profiles.

South Carolina has issued Ethics Advisory Opinion 12-03, which deals with the site JustAnswer.com. A lawyer had requested an advisory opinion about the ethics of participating in such a site. The site allows members of the public to post questions that will be answered by “experts” in all manner of professions. To ask a question, the user pays the site a fee. The lawyer who submitted the question to the bar asked if lawyers could ethically participate in such sites for compensation.

The short answer from the bar was “no.” South Carolina said that the site’s use of testimonials, endorsements, the word “expert,” and other misleading statements would prohibit participation by lawyers. The obligatory disclaimer on the site—that answers were not a substitute for legal advice—was not controlling where so much of the language on the site was misleading.

Conclusion. Remember that what you do online may well live forever. It has now become routine to archive someone else’s blog or website. Removing anything unethical from your own site does not necessarily remove the evidence of the offense.

Digital marketing is without a doubt the way of the future. As each new facet of digital marketing emerges, it is important for lawyers to continue to educate themselves on the propriety of using the new tools and to seek ethical guidance from their state bars if they are uncertain about how to proceed. There is ethical quicksand in the world of digital marketing. The best way to avoid it is to stay informed and exercise caution. 

ABA Section of Family Law

This article is an abridged and edited version of one that originally appeared on page 24 of Family Advocate, Winter 2013 (35:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: americanbar.org/family

Periodicals: Family Advocate, quarterly magazine (three issues with how-to articles and current trends and a fourth “Client Manual” issue for lawyers and clients); Family Law Quarterly, scholarly journal; Case Update, monthly electronic digest of family law cases nationwide; eNews, monthly electronic newsletter.

CLE and Other Programs: Monthly webinars, spring/fall conferences, and the ABA Family Law Trial Advocacy Institute, the premier trial training program for family lawyers.

Books and Other Recent Publications: Client Letters for the Family Lawyer; Becoming the Tech-Savvy Family Lawyer; Children Held Hostage, 2d ed.; The Family Law Trial Evidence Handbook; Forensic Psychology Consultation in Child Custody Litigation.



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