As social media grows, lawyers may find it useful to advertise their law practices and services. Stepping into the world of Twitter, Facebook, and other popular social media tools to advertise can raise ethics questions, as one California ethics opinion shows.
The State Bar of California Standing Committee on Professional Responsibility and Conduct examined some of these ethics questions in Formal Opinion No. 2012-186. The committee explored the circumstances under which an attorney’s social media postings would be subject to professional responsibility rules and standards governing attorney advertising.
Prompting the inquiry was a case involving a lawyer who regularly posted comments about her personal life and career on her social media profile page. About 500 people could view the information on her profile page. These included personal and professional contacts and some people the lawyer did not know.
The lawyer’s profile page remarks included:
- “Case finally over. Unanimous verdict! Celebrating tonight.”
- “Another great victory in court today! My client is delighted. Who wants to be next?”
- “Won a million dollar verdict. Tell your friends and check out my website.”
- “Won another personal injury case. Call me for a free consultation.”
- “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
The ethics committee found that while lawyers may advertise on social media, ads must comply with the Rules of Professional Conduct (RPC). Rule 1-400 of the RPC lists requirements lawyers must follow, including ensuring communications are not false or misleading or made in a coercive manner.
Under Rule 1-400, ads subject to RPC requirements include “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member of a law firm directed to any former, present, or prospective client…” The key question when deciding if a social media posting is a prohibited communication under rule 1-400 is if it concerns the availability for professional employment of an attorney.
If the ad is subject to rule 1-400, it must avoid falling under one of 16 standards outlining various types of communications presumed to violate rule 1-400 (e.g., testimonials, guarantees of results lacking appropriate disclaimers).
The committee found the attorney’s social media postings included two types of information: (1) general legal information (article recommendations); and (2) information about her legal practice (filed complaints, court victories). It concluded the first type of information did not constitute information about availability for employment. Postings about her legal practice, however, could concern availability for professional employment and therefore could be subject to rule 1-400.
Reviewing the lawyer’s social media posts, the committee made the following findings:
- “Case finally over. Unanimous verdict! Celebrating tonight.” – A simple announcement of a recent victory is not a communication under rule 1-400 since it does not concern the availability for professional employment.
- “Another great victory in court today! My client is delighted. Who wants to be next?” – The text “Who wants to be next?” is a communication subject to rule 1-400 since it suggests availability for employment. The client endorsement “My client is delighted” also violates rule 1-400 because it does not include a disclaimer. The posting also includes “guarantees, warrantees, or predictions regarding the result of the representation,” in violation of rule 1-400 standard 1 since it relates to a “victory” and suggests that someone could be the next victorious client.
- “Won a million dollar verdict. Tell your friends and check out my website.” – “Tell your friends to check out my website” conveys a message or offer concerning the availability for professional employment subject to rule 1-400.
- “Won another personal injury case. Call me for a free consultation.” – The free consultation language concerns the availability for employment, even though it offers professional services for free. An offer of free consultation is an effort to secure future employment and suggests the lawyer may be hired.
- “Just published an article on wage and hour breaks. Let me know if you would like a copy.” – Sharing information about a published article is not subject to rule 1-400 since there is no accompanying solicitation for business.
The California opinion is instructive: using social media to advertise may cross ethics lines when a post concerns availability for professional employment. Seeking guidance from your state can help ensure venturing into social media to market your practice is an ethical endeavor.
Claire Chiamulera is the editor of CLP.