Have I Struck the Proper Balance Between Smart Marketing and Sound Ethics?

Edward M. O’Brien

Charlie, a recent law school graduate, decided to hang out his own shingle and start a criminal defense practice. He quickly recognizes the significant challenges this presents. It is difficult for even seasoned attorneys to make it on their own, much less a new attorney still waiting for the ink to dry on his bar admission certificate. Charlie realizes that social media can be a powerful tool for developing a client base and in crafting a professional reputation.

Charlie’s passion is DUI defense. He adopts a catchy moniker, “The DUI Dude,” and this features prominently on his newly developed website. Charlie sets up Facebook, Twitter, LinkedIn, and YouTube pages for his practice. He begins blogging. He films a commercial advertisement and posts it on his YouTube page. Charlie even occasionally posts updates on both his business and personal Facebook pages relating to his cases and clients, who remain unnamed. One day, Charlie sits down with an experienced attorney in town who serves on the disciplinary and advertising committees of the state bar association and asks him for his thoughts on Charlie’s marketing strategy.

The attorney, who is much older than Charlie and relatively inexperienced about using “the Facebook” and “the YouTube,” acknowledged that state bar associations have been slow to keep up with emerging social media and the ethical considerations of social media’s use. Many courts in states such as Florida and California, he warned, have explicitly held that traditional advertising rules apply to social media platforms. Similarly, attorneys should take note that in most states, the rules restricting and regulating direct solicitation are generally applicable to social media as well.

Social media also has significant implications for an attorney’s ethical obligation not to disclose privileged or confidential information. A seemingly innocuous Facebook status update about an annoying client or a difficult assignment, a celebratory status about a successful motion or a trial victory, and even a location check-in, can all, in some circumstances, constitute a breach of the attorney’s obligations under Rule 1.6. For solo practitioners seeking to make a name for themselves, the temptation can be especially strong to promote one’s accomplishments through active social media engagement. Yet the basic obligation to maintain client confidentiality does not yield to this pressure.

Perhaps most critically for Charlie, a vibrant social media platform very often requires fresh, catchy titles and phrases that grab the reader’s attention. To the typical social media user, “Young attorney with an extensive practice focused on DUI defense” is far less sexy than “The DUI Dude.” But the latter moniker, while certain to attract the welcome attention (and maybe even the business) of social media users, may attract the unwelcome attention of state bar officers tasked with enforcing ethics and advertising rules.

Fundamentally, marketing one’s practice is a balance between the entrepreneurism required to grow and develop the business of a legal practice and the ethical obligations imposed by a service-oriented profession. This tension is not always easily resolved because of the changing nature of social media and the slowness of ethics rules in keeping up with that change. In navigating this new and ever-changing landscape, caution must be the watchword. And, as a final note, professional reputations must be earned, not contrived. While social media can be a vital tool for marketing one’s skills, the oldest method of marketing should be part of the strategy: let your qualifications and accomplishments speak for themselves.

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Edward M. O’Brien

Edward M. O’Brien is an attorney with Wilson Elser’s Louisville office and the managing editor of the Kentucky Appellate Survey.