Social Media Marketing & Ethics

By Cynthia Sharp, The Sharper Lawyer

With the advent of social media, a law firm’s message can be broadcast (or even podcast) widely with a minimal financial commitment.  Those with a modest budget can exponentially expand their exposure to potential referral sources and clients by becoming involved in the social media conversation.

While reported increases in the number of attorneys using social media is impressive, the real attention grabber is the increase in business derived from social networking.  According to a recent ABA Legal Tech survey, the percentage of attorneys whose social media efforts produced paying clients doubled from 2010 to 2012:

Year               Percentage/Paying Clients
2010                            9.8%
2011                          12.4%
2012                          16.5% 

Furthermore, legal topic blogs drove business to 38.1% of those surveyed.

Despite the compelling statistics, many remain reluctant to engage in a social media campaign citing as reasons lack of time or concern about violating attorney ethics rules. A lawyer who has developed a guaranteed steady stream of quality clients may not need to rethink his or her game plan.  However, the rest need to make the time to get up to speed. The learning curve can be overcome easily with the numerous programs (online and live), articles and books available through the ABA and other resources. The investment of time is simply a discipline that yields dividends in the form of increased business.

While new ethical frontiers have opened, a review of pertinent rules, state advisory opinions, and ethics and judicial opinions will pave the way to an ethically compliant social media campaign. Although attorney advertising rises to the level of a protected form of commercial speech, it is nonetheless subject to the provisions of the rules of professional conduct adopted in each jurisdiction.  Because most states have adopted a version of the Model Rules of Professional Conduct (MRPC), reference can first be made to the MRPCs and the amendments adopted in August of 2012. MRPC 7.1 – 7.5 set forth the rules governing information about legal services. However, the rules of an attorney’s own state must also be examined.

Major pitfalls to avoid with respect to design of website content are outlined in Formal Opinion 10-457, issued by the ABA Standing Committee on Ethics and Professional Responsibility. For example, attorneys are prohibited from posting misleading or false information. Ethics complaints have been filed against attorneys who unintentionally listed outdated or inaccurate credentials on their websites which is a violation of MRPC 7.1 or the state equivalent. These cases demonstrate that many attorneys do not review the content developed by marketing companies they hired. The attorney’s defense that he or she was unaware of the content is ineffective since ethical compliance cannot be delegated.

Another potential online pitfall is the problem of unintended representation.  Attorney client relationships are still by and large developed in the traditional manner – in person and in an attorney’s office. However, prospective client relationships  and the accompanying obligations set forth in MRPC 1.18 (such as confidentiality) also now arise via e-mail, websites and other electronic means. Revised Comment 2 of MPRC 1.18 notes that “[a] person becomes a prospective client by consulting with a lawyer about a client-lawyer relationship with respect to a matter”. The factors to consider in determining whether a communication (electronic, oral, written, in person or otherwise) constitutes a consultation are outlined in the comment.  Posting the following disclaimer above or below the inquiry form on a website should help clarify this issue:

 “The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.” 

Whether a blog is subject to regulation under the attorney advertising rules has been the topic of great debate. So far, jurisdictions addressing the issue have categorized the blogs as attorney advertising and required compliance with applicable ethics rules.  For example, the Virginia state bar required an attorney blogger to display a form of disclaimer and found him in violation of ethics rules upon his failure to comply with their demand to do so. (He unsuccessfully argued that his blog was not an advertisement.) A comprehensive discussion of this issue along with practical tips can be found at http://webmarketingtoday.com/articles/Law-Blogs-Free-Speech-or-Marketing/.

Social media has opened up unparalleled marketing and networking opportunities. While it is not a substitute for live interaction, current relationships are enhanced and new ones are formed. Most can steer clear of ethical infractions by using common sense and staying current with respect to new local developments.

In the next column, we will explore the use of Social Media as a Research Tool

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Cynthia Sharp (cindy@thesharperlawyer.com) is Director of Attorney Development at The Sharper Lawyer located in Philadelphia, Pennsylvania.  As a professional CLE instructor and attorney business coach, Cindy has established a national presence as an author and speaker on topics of ethics in the context of practice management, social media and technology – lecturing extensively to law firms, bar associations and other legal organizations.

Ms. Sharp’s Indianapolis and Merrillville seminar, Strategies for Taking Charge of Your Law Practice, has been completed however, you can still view the Video Replay or the Online/On Demand Seminar by Clicking Here

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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