January 21, 2020 Practice Tips

Practical Tips and Ethical Traps for Attorneys Using Social Media

By Todd C. Scott

If you are an attorney in practice today, it is very likely that you are using social media for work or personal use. According to the ABA’s 2018 Legal Technology Survey Report, 76 percent of respondents report that their firms maintained a presence in online communities or social networks.1

Among the individual lawyers who use social networks, a significant majority of them—82 percent—report using LinkedIn for professional purposes

Among the individual lawyers who use social networks, a significant majority of them—82 percent—report using LinkedIn for professional purposes

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Of the various social media platforms out there, LinkedIn, Avvo, and Facebook are by far the most popular platforms in use by attorneys. Among the individual lawyers who use social networks, a significant majority of them—82 percent—report using LinkedIn for professional purposes. Facebook use among lawyers is also very strong, with 63 percent of law firms reporting Facebook use for a marketing purpose. Overall, 36 percent of respondents’ firms report maintaining a presence on Avvo, but it is most likely to be used by solo attorneys (47 percent) and smaller firms of fewer than 10 lawyers (40 percent). Use of Twitter by attorneys is much less, with 14 percent of respondents reporting that their firms maintained a presence on Twitter in 2018.2

LinkedIn’s popularity is an obvious attraction for any lawyer who wants to maintain a minimal online presence. By subscribing at no cost and supplying the site with basic information about your firm, your work experience, and the type of legal matters that you typically handle, you offer prospective clients and referring attorneys a way to quickly find important and valuable information about you or your firm using a quick Google search. The same goes for a basic Facebook site used to advertise the firm’s availability to provide legal services.

However, as social media platforms, LinkedIn and Facebook are meant to go beyond what a basic advertorial website has to offer. Like all social media platforms, LinkedIn and Facebook are designed to encourage the public to interact with subscribers, applying easy-to-use features that not only give readers access to your detailed firm information but also allow the reader to publicly engage with you by endorsing your services or, as in the case of Facebook, posting information directly on your home page.

For many attorneys using social media, having happy clients and trusted friends engage with you publicly in an online forum is advertising gold that cannot be matched by any number of prepaid print ads. In the 2018 ABA survey, 35 percent of lawyers using social media for professional purposes have had a client retain them as a result.3

But if used incorrectly, the same features found on a social media web platform can create an ethical nightmare for an attorney who may not be aware of the implications. For example, if a lawyer invites the public to post legal questions on his or her Facebook site, is a client-attorney relationship formed once a web reader takes the lawyer up on the offer? According to ABA Formal Opinion 10-457, such an invitation may trigger the ethical duties owed to prospective clients, and the attorney may be conflicted out of representing other parties related to the prospective client’s matter.

The following is a brief list of some of the ethical concerns that may be triggered through an attorney’s use of social media.

What You Post May Be Advertising

Since platforms like LinkedIn and Facebook are primarily attractive to lawyers because of their ability to reach the general public with information about the lawyer’s services, there is no denying that these websites easily can be perceived as advertising vehicles, and therefore their content should be restricted by local advertising rules. Lawyers using social media platforms should familiarize themselves with rules restricting advertising in their jurisdiction, generally found in ABA Model Rule 7.1 (Communications Concerning a Lawyer’s Services), which prohibits lawyers from making false or misleading communications about the lawyer or the lawyer’s services. This can be particularly troublesome when websites such as LinkedIn or Avvo invite lawyers to identify “specialties” or “expert” in their profile—terms that are highly regulated under most lawyer advertising rules. Local variations on ABA Model Rule 7.2 (Advertising) can change drastically from jurisdiction to jurisdiction, and what might be allowed in some jurisdictions—such as client or celebrity endorsements—may be strictly prohibited in others. For example, in Pennsylvania, lawyer advertisements are prohibited from containing an endorsement from a celebrity or public figure;4 however, no such prohibition exists regarding lawyer advertisements in Illinois and several other jurisdictions.

Solicitation Online Is Still Solicitation

Rules restricting attorney contact with an unknown person, such as ABA Model Rule 7.3 (Solicitation of Clients), can come into play in the unusual world of social media, where people who have never met each other have somehow “friended” through online platforms. The rule is straightforward: an attorney shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from nonattorney individuals who are not related to the attorney or have not had a previous relationship with the attorney. So, even though someone may be simply following your posts on Facebook, your communication to the individual for the purpose of pecuniary gain using the tools designed to promote online interaction may be considered solicitation and prohibited under the rules. Again, read your local rules and ethics opinions for guidance on the acceptable use of social media communication.

Do Not Disclose Confidential Information

Of all the advice mentioned here, not disclosing information may seem like the biggest no-brainer of them all. But there are numerous cases of lawyers getting in trouble for ethical lapses after they have revealed information about their client interactions online that resulted in a violation of ABA Model Rule 1.6 (Confidentiality of Information). In 2013, the Supreme Court of Georgia upheld a public reprimand after a Georgia lawyer posted online personal and confidential information about a client that the lawyer had obtained in the course of the representation.5 The post was in response to negative reviews of the lawyer that the client had posted on three “consumer Internet pages.” The lawyer identified the client by name, identified the employer of the client, stated how much the client had paid, identified the county where the client’s divorce had been filed, and stated that the client had a boyfriend. It is easy to get caught up in the instant online journaling that goes on every day in the world of Facebook. After all, many people who choose to follow you online have done so because they find your life as a lawyer to be interesting. But it is important not to forget that many of the facts and circumstances that may be interesting to others online are private and should remain confidential.

Avoid Inviting the Entire World to Become Your Client

Attorneys who post information online inviting consumers to contact them with their legal questions may be setting themselves up for inadvertent or unintended client-attorney relationships. Such unintended relationships can become disastrous if the “client”—after using the attorney’s social media page or attorney website to ask legal questions and divulge private information—is waiting for a response from the attorney that will never come. ABA Formal Opinion 10-457 (Lawyer Websites) is very useful for helping lawyers understand that invitations like “Tell us about your case . . .” will trigger additional responsibilities for the lawyer if an individual takes a lawyer up on the offer. Instead of having an open invitation online, it is better simply to include your contact information along with a disclaimer that is designed to limit or disclaim a lawyer’s obligation to a website reader. Such warnings or statements may be written so as to avoid a misunderstanding by the website visitor that a client-attorney relationship has been created, that the visitor’s information will be kept confidential, that legal advice has been given, or that the lawyer will be prevented from representing an adverse party.6

Conclusion

Social media, like most new online tools, can be a valuable thing for the development of your law practice. And considering the convenience and affordability of such a powerful tool, it may be hard to avoid using it more often for communicating information about your legal services. But keep in mind that the ease of use and instantaneous nature of social media often put the lawyer in a situation where important decisions about what the public will see are made in haste. Information about the firm that previously—before the days of the internet—would have taken weeks to carefully parse out is now quickly publicized by anyone in the firm with a Facebook page. Therefore, lawyers should take the time to examine their social media habits, as well as the information and disclaimers they currently use, and formulate a new policy so that social media will be used in the firm responsibly and ethically.

Notes

1. Allison C. Shields, 2018 Marketing, ABA TechReport 2018 (Jan. 7, 2019), www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/Marketing.

2. Id.

3. Id.

4. 204 Pa. Code § 81.4, r. 7.2(d).

5. In re Skinner, 740 S.E.2d 171, 173 (Ga. 2013).

6. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 10-457 (2010) (discussing warnings or cautionary statements intended to limit, condition, or disclaim a lawyer’s obligations to website visitors).

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Todd C. Scott is vice president of risk management for Minnesota Lawyers Mutual Insurance Company. Contact him for more information about lawyers’ use of social media, or any other ethics, legal technology, or practice concerns.