November 2012 | Prepare Your 2013 Business Development Goals Now
The Slippery Ethical Slope of Social Media
The law is a professional service that also is a business. Doing business with prospective users of legal services should be restricted only by truth, fairness and honesty. The problem is not that lawyers are too few and are too expensive, it is that they often cannot compete for clients in a businesslike way. Unfortunately, lawyers still risk bar association discipline for using traditional marketing tactics, and that has never been more the case than in lawyers’ use of social media.
Social media – whether it encompasses blogging, a LinkedIn or Facebook page, a Twitter post, or any number of other new iterations – constitutes a powerful marketing tool for lawyers by combining personalized observation with facts and insights from the lawyer’s area of focus to help create new client relationships. But there are concerns about whether social media activity is freely available information, or is advertising controlled by the bar because social networking messages are available to the entire world, not just existing clients.
The American Bar Association’s Commission on Ethics 20/20 Working Group on the Implications of New Technologies raised these concerns in detail in a 2010 working paper1 and recommended in 2011 that social networking should not be used for “real time electronic contact” to solicit clients and should be viewed as general communication to educate potential clients.2 The ethics rules on this issue will likely continue to evolve
Truth and Fairness
The Internet has been the great marketing equalizer, allowing small firms to educate consumers about their services just as effectively as large firms do. Yet state bars still seek to restrict them. For example, the Virginia State Bar in 2011 charged a lawyer with professional misconduct for talking about his own completed cases on his blog without adding an advertising disclaimer that results depend upon factors unique to each case and that results in one case do not predict similar results in others. The lawyer argued that his blog consisted of news and commentary, that the information he posted was disclosed during public trials, was accurate, did not violate any confidences – and was not advertising. The state bar disagreed, and the lawyer reluctantly posted the disclaimer.3
Awareness and Contact
Once prospective clients start to gather names of lawyers—either directly through Internet searches or via personal referrals—they can use social networking resources to check out the lawyers’ credentials, experience and testimonials. They can use platforms like Twitter and Facebook to get feedback from current clients, and even to get a personal feel from what lawyers reveal on these sites about their personality in comments about family, hobbies and opinions. Similarly, opinions and insights on a blog may help build credibility.
For this reason, it’s no coincidence that The American Bar Association’s 2011 Legal Technology Survey Report of a wide cross-section of ABA members found that 42 percent of respondents said their firms maintain an online presence in social media, compared to 17 percent in 2010 – and 65 percent of individual respondents said that they personally have an online professional presence, obviously including a sizeable number who maintain such a presence even if their firms don’t.4 These are ways to be memorable and differentiated from other lawyers.
Conduct and Morality
This is a far cry from major ethics concerns like dipping into client trust accounts. That’s particularly so when the commentary on Rule of Professional Conduct 8.4 about unethical conduct admits that there are “matters of personal morality . . . that have no specific connection to fitness for the practice of law.” In today’s society, no one, including lawyers, seems exempt from scrutiny and questioning about their conduct as revealed on social media.
Judges and “Friends”
This seems not good enough. How can a judge know that someone who is a "friend" today won't be a party or lawyer in court tomorrow? It was on that basis that in 2009 the Judicial Ethics Advisory Committee for the Florida Supreme Court decided that judges could not add lawyers who appear before them as friends online. The simple fact is that judges’ participation in social media networks can well be seen as a per se violation of the appearance of impartiality.
Prospects and Clients
One final thought. Social media may reach a number of potential clients, but they also reach many more people who don’t have any interest in a given lawyer or law firm. And the firm is paying for all those disengaged listeners, in terms of the time that consistent online marketing requires. When pursuing social media, lawyers should never forget the necessity to continue bonding with existing clients. Maintain loyalty through caring and effective counsel and these very same clients can be your advocates with others in ways that a Twitter post can never match.
Ed Poll is a speaker, author and board-approved coach to the legal profession. He can be reached at firstname.lastname@example.org or call (800) 837-5880..
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Micah U Buchdahl, HTMLawyers, Inc
Andrea Malone, White and Williams LLP
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John D. Bowers, Fox Rothschild LLP
Margaret M. DiBianca, Young Conaway Stargatt & Taylor, LLP
Nicholas Gaffney, Infinite Public Relations, LLC
Nancy L Gimbol, Eastburn & Gray
Richard W Goldstein, Goldstein Patent Law
Katy M. Goshtasbi, Puris Image
William D Henslee, Florida A&M Univ College of Law
Allison C. Shields, Legal Ease Consulting, Inc.
Gregory H. Siskind, Siskind Susser, P.C.
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