One source of reluctance on the part of lawyers to engage in social media for business purposes is the fear of running afoul of ethics rules. To me, this is more an excuse given by those who don’t want to join the 21st century marketing game to justify their fear of the unknown.
But like the first guy who climbed off his horse and into a car, you’ll find that using social media can get you where you want to go much faster. Your clients are already there, which means you should be, too.
Fear of technology is easily overcome with knowledge. Or, if you don’t have the slightest inclination to become knowledgeable about social media, there are several good law firm marketing companies that work specifically with attorneys and are well aware of the ethics rules we must all abide by. Hire one of them.
But don’t think you can hide from technology forever. Bar associations are starting to require attorneys to have basic knowledge of technology and social media. In 2015, the New York Bar issued new guidelines requiring attorneys to “be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use.” In South Carolina, an attorney was suspended because she refused to have an email address.
The Big 4
In general, concern about ethics and social media focus on four areas: advertising, confidentiality, discovery and solicitation. While every state’s bar rules are unique, here’s how you can avoid committing some common mistakes in these areas:
Advertising. A good rule of thumb for attorney advertising is that if it’s not allowed by your state bar in traditional media channels, it’s probably not going to fly on social media either. Be sure you know the rules that govern commercial speech when it comes to attorney advertising. You can avoid any potential conflicts by avoiding commercial speech altogether in your posts — and really, that’s not the purpose of being on social media anyway. It’s all about building a connection by sharing the knowledge you already have with people who need that knowledge. They will find you.
Confidentiality. Breaching confidentiality doesn’t happen that often, but when it does, it’s usually because a lawyer got a little ahead of themselves (or full of themselves?) and posted too many details about a client or a case. Never use client names in your post — in fact, don’t talk about clients at all. Use general terms when you want to post about a huge jury verdict or settlement — “Congratulations to our trial team on winning a $10 million jury verdict in a talcum powder ovarian cancer case.” That’s all you need to say. Anyone seeing that who thinks they have a similar claim will be in touch. You need to use legal disclaimers on all of your social media accounts.
Discovery. Gaining access to social media information can be highly beneficial to your case. But how you can obtain that information varies by state. In many instances, you must “friend” someone to get access to their posts on Facebook. The New York Bar allows you to do this for the purposes of discovery. However, Pennsylvania does not. Before you make a friend request in order to gain information for a case, check with your state bar association to see if it’s allowed or if you must disclose certain information when making the request.
Solicitation. Whenever you ask someone to contact you in a post, you are generally considered to be engaging in commercial speech for the purpose of soliciting business. The State Bar of California draws a fine distinction here, categorizing general statements like “check out my website” or “call me for a free consultation” as solicitation. However, if you post that you have just written an e-book on a particular legal subject, you can ask people to contact you for a free copy. Best practice here is to know your state bar’s restrictions on commercial speech and examine your posts before you put them up for any gray areas. You are responsible for everything that is posted on your social media accounts, so be sure to read and edit all information before it is posted.
