Ethics of Groupon marketing and other implications of Opinion 465

With opportunities to participate in social media exploding, lawyers and their firms have an abundance of new avenues to market their services and develop new methods for business development.

Plus, social media is where the people are. But there are perils with this changing landscape, providing good reason for attorneys and their firms to exercise due diligence when tweeting, using Facebook or LinkedIn, or relying on other forms of social media to reach prospective clients.

“You have to know what you are doing,” Jennifer Ellis, a legal malpractice and ethics attorney at Lowenthal & Abrams PC in Philadelphia, said recently at an ABA webinar, “Should I Tweet About That? Ethics, Advertising and the Internet after ABA Ethics Opinion 465.

In October 2013, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 465 that guides lawyers and law firms on how to best use group-purchasing marketing programs and adhere to ethical and professional obligations. 

The guidance recognizes these marketing programs — both online and in print — offer lawyers an alternative way to market their services, attract new clients and foster brand recognition. It addresses coupon deals in which the lawyer directly collects discounted fees upon providing legal services as well as deals in which legal fees are paid in advance and collected for distribution by a third-party marketing organization. 

The message sounded by Ellis and other panelists: Fully understand the ethical rules of your state or jurisdiction because each could be different. “Take a look at your local state before you jump in this very controversial area,” said Ellen Pansky, an attorney with Pansky Markle Hamm LLP in South Pasadena, California, regarding use of discount coupons.

Issues to consider include whether the group-advertising offer constitutes fee splitting, is clear to the consumer, consistent with the attorney’s competencies and what happens when it is not redeemed within the specified time limit. Another complicating factor could develop if the consumer opts to use the coupon and the lawyer determines there is a conflict and must decline representation.

“The rule of reason has to be applied,” Pansky said. She explained the lawyer has to be an “active participant in drafting the advertisement” to ensure both accuracy and no “material facts” are omitted.

Ellis also cautioned lawyers not to rely on consultants as the last word, saying they often are not aware of the ethical rules governing attorneys. “Social media sites don’t know our ethical rules, and they don’t care either,” she said.

Peter Joy, a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, observed that ethical rules guiding advertising on the Web are consistent with the rules developed after Bates v. State Bar of Arizona. That 1977 U.S. Supreme Court decision struck down total bans on lawyer advertising in newspapers and other media, determining it was commercial speech protected by the First Amendment.

Joy explained, for instance, that a lawyer shouldn’t say he “never lost a jury trial” if he never had one. “You can’t make claims that are misunderstood,” he said.

With the growth of legal blogs and social media channels, one emerging ethical issue is the propriety of a lawyer blogging about client matters — particularly when the case is closed and the content is demeaning to the client.

Consider this scenario: A defense lawyer blogs about a past client (who never provided consent) and mentions a previous conviction that is publicly recorded but not widely known. Has the defense attorney violated attorney-client privilege? Should the defense attorney be held to a different standard than another attorney who might blog the information but has no relationship with the client?

“Different states take different positions,” Joy said. “This is in flux, and I anticipate it will continue to develop.”

The webinar was moderated by Dennis Rendleman, ethics counsel of the Center for Professional Responsibility, which sponsored the program along with the Center for Professional Development, Law Practice Management Division, Solo, Small Firm and General Practice Division and Young Lawyers Division.