Social Media and Legal Ethics: Some Clarifications

The jury is (almost) in. We do not, thankfully, anticipate a Casey-Anthony-super-sized-post-verdict outrage when the American Bar Association codifies its Commission on Ethics 20/20 proposed amendments to the Model Rules in 2012. According to the Commission's recent proposal and report, lawyers are almost certain to avoid any new draconian restrictions on social media activity as were feared by some. We do, however, expect to see some clarifications that should make ethical conduct for lawyers using social media a bit more predictable.

BIG shout-out to the ABA Commission and it's Co-Chairs, Jamie S. Gorelick and Michael Traynor for their hard work in sorting through the collective knowledge submitted in response to the September 2010, "Issues Paper Concerning Lawyers' Use of Internet Based Client Development Tools."  Their initial draft proposals in the "Lawyer's Use of Technology and Client Development" discussion, released on June 29th, appears to be spot on: "No new restrictions are necessary in this area." Just clarifications.

"Technology has enabled lawyers to communicate about themselves and their services more easily and efficiently, and it has enabled the public to learn necessary information about lawyers, their credentials, and the particular legal services those lawyers provide as well as the cost of those services."

"Lawyers, however, need to ensure that these communications satisfy existing ethical obligations. The Commission's proposals are designed to give lawyers more guidance regarding these obligations in the context of various new client development tools."

Clarifications.

The clarifications offered by the Commission will undoubtedly help lawyers and marketers to proceed without fear of the unknown-sort of. They're not going to stymie your participation, but it's still up to the individual to exercise judgment. Check out what a few bloggers have say here and here.  For readers who want a quick run down in layman's terms, read on...Note: it took this seasoned marketing professional several readings-think double speak-to get to the practical implications, so, feel free to leave a comment if you have something to add or if you think I've got something wrong here. I hope this helps...

A prospective client, a potential client, and a solicitation

The distinction between communications with a "prospective client" was found needing clarification (Rule 1.18). A prospective client is one in which communications give rise to a client-lawyer relationship.

In short, the Commission identifies several precautions that lawyers should take to prevent the inadvertent creation of a "prospective" relationship and to ensure that the public does not misunderstand the consequences of communicating electronically with a lawyer.

Translation: This boils down to the what, where, when, and how disclaimers are used, for example, on a law firm's website, email messages, blog site, or etc.  Also, a lawyer is advised to gauge their risk tolerance for being conflicted out of representing an adverse party of the "prospective" client should they chose to decline representation of the prospect-but this holds true for offline conversations as well, so nothing really earth shattering here, except that it brings the following into play....

Clarification of "prospective client" in advertising Rule 7.3

Advertising and other forms of marketing by definition are targeted to future clients-clients with whom the lawyer has had no prior contact and therefore are not technically "prospective clients."

To avoid confusion, the Commission proposes to replace the use of "prospective" in Rule 7.3 with "potential;" a new term not yet clearly defined, but is understood to imply the universe of public persons-all possible future clients. Again, the distinction being that a "potential" client has not previously made contact with a lawyer but a "prospective" client has.

Translation: It's okay to use social media and Internet advertisements to promote your services to future ("potential") clients. Keeping in mind that compliance with all current aspects of advertising found in Rule 7.3 is necessary.

I have a website with a live chat line. Is that okay?

Rule 7.3 also addresses, and prohibits, most kinds of in-person, live telephone, and real time electronic solicitations, but permits other forms such as direct mail and email with a disclaimer such as "Advertising Material" clearly displayed.

Today, however, lawyers can post information on their social or professional networking pages (which function like websites) and can enter into conversations via those pages (like email) with "potential clients," sometimes in "real-time" and sometimes not.  Ah... the complexity! To clear up the ambiguity, the Commission proposes that:

 "...a lawyer's communications constitute a solicitation when the lawyer offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific potential client." (Emphasis added)

How this might play out: Let's say you have a live chat option on your law firm website, the kind that pops up and asks the visitor if they have questions or would like assistance. If the visitor chooses to use the chat screen, that visitor is initiating contact with the lawyer or their agent. This may also be analogous to a "contact us" form.

It is important to note that the prohibition in Rule 7.3(a) applies only to lawyer-initiated contact. Rule 7.3 does not prohibit real-time electronic contact that is initiated by a potential client. In the instance described above, the website visitor has made the initial contact with the firm. The visitor has chosen to visit the law firm's website, indicating that they have some interest in the website's content. It is appropriate at this juncture for the law firm to offer the website visitor live assistance.

Practical pointer:

Of course, once assistance is offered and a conversation ensues, the potential client becomes a prospective client and all the conditions of the prospective client relationship apply, i.e. you may set yourself up to be conflicted out of working for the other party. That adverse party may, in fact, be a current client! You will need to develop a conflict check process before discussing a case with any contact that comes over the transom via your website, electronic communication, or any social media outlet-something many law firms have yet to address but would be advised to do so.

Translation: It is okay to communicate in real-time about your services with "potential" clients via social media and the Internet.  This clearly does not violate rules pertaining to solicitation: Responses to requests for information or advertisements that are not directed to specific people are not "solicitations."

Another example found in the Commission's report includes advertisements that are automatically generated in response to an Internet search. The Commission wishes to clarify that these are not solicitations because the "advertisements are generated in response to Internet research." These responses are more analogous to a lawyer's response to a request for information initiated by a potential client than an unsolicited and targeted letter to a potential client who is known to be in need of a particular legal service-which is a solicitation.

Translation:  It is okay to buy ads on search engines-it is not solicitation.

Will you recommend me?

Things get a little murky when the Commission tackles "recommendations." Model Rule 7.2(b) essentially prohibits a lawyer from giving anything of value for recommending the lawyer's services. While this Rule is clearly written to prohibit a lawyer to pay "runners" to engage in in-person solicitations, i.e. ambulance chasers, the commission recognizes that "a number of new forms of lead generation such as pay-per-click and pay-per-lead services have surfaced with the rise of the Internet." Although these Internet "referrals" do not "typically use in-person solicitation or employ false or misleading communications" they do involve payment for what might be considered a recommendation. Therefore, the Commission says this Rule needs clarification because "in a limited context some fees should be permissible."

Truly, Internet "referrals" via search engine ads, Facebook ads, or even Sponsored Twitter Search Results are not all that different than paying for the ads you run in the local press, or a magazine publication. In each of those traditional examples, paying your advertising, PR or Internet marketing agency folks to create and place those ads fall into the same bucket-and are allowed under 7.2.

Translation: It's okay to pay for sponsored ads, Facebook campaigns and search engine key words. Unfortunately, this clarification does not resolve the most frequent question I am asked: "Can I accept recommendations on LinkedIn?" Seems that since this is not a paid referral, recommendation, or solicitation, it's okay? Check with your State Bar for any prohibitions on client testimonials for the answer that is specific to you.

Is my Facebook promotional give-away a "recommendation" under 7.2(b)?

In regard to Rule 7.2(b), the Commission's report included a case study of a law firm offering free branded t-shirts to Facebook Fans who would subsequently send in a photo of them wearing the shirt and that would be posted to the firm's Facebook Company Page. In the strictest sense, the wearing of this t-shirt this may be perceived as a "recommendation." Further, the gifting of the t-shirt compensation. Hmm. Interesting, right?

Well, the Commission smartly suggests that clarification be made to Rule 7.2(b) along the lines that the gifting of a t-shirt and a subsequent photo of a person wearing it is not inherently a recommendation of their legal services.

Translation:  Go forth and Facebook your t-shirts-well, maybe after the proposed Comments and Amendments are codified in late 2012.

Don't make false or misleading communications on social media.

Finally, an easy one. The Commission decided that there would be no further need to develop new or different restrictions to the prohibition against false and misleading communications found in Advertising Rule 7.1.

"This Rule is readily applicable to online advertising and other forms of e-communications used to attract new clients."

However, smart firms will include a reminder in their law firm policy to the effect that: In every thing you do or say on the Internet, by all means, do not spread false or misleading information about you or your services. For more ideas on constructing a social media policy for law firms, read this previous Virtual Marketing Officer post.

What's ahead?

The Commission plans to release proposals with regard to other issues on its agenda no later than September 2011. The Commission will submit to the ABA House of Delegates final versions of all of the Commission's proposals in May 2012, for the House of Delegates' deliberation at the August 2012 ABA Annual Meeting. In the meantime, the Commission seeks and welcomes feedback on its proposals and reports to date.

Comments in response to the Initial Draft Proposals on Lawyers' Use of Technology and Client Development are due August 31, 2011. Comments may be submitted to Senior Research Paralegal, Natalia Vera at natalia.vera@americanbar.org.

Go forth, ethically, and prosper!

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