Social Media Ethics for Attorneys

Columbus Bar Association:
ETHICS IN SOCIAL MEDIA MARKETING

March 23, 2010

Matthew D. Austin
Barnes & Thornburg LLP
21 East State Street,Suite 1850
Columbus, OH 43215
(614) 628-1409
Matt.Austin@btlaw.com

© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP which
may not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this page
is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.

• Ethics Rules and Opinions were Around
Long Before Social Media


Social Media Risk/Reward

• Matt Crumpton already spoke of all the
rewards
• Risks
– Advertising
– Misleading Communication
– Client Testimonials
– Solicitation
– Confidentiality
– Attorney-Client Privilege
– Conflict of Interest
– Specialties


Advertising

• Content on social web sites may constitute
advertising legal services on the Internet.
• See, Ohio Bd. Commissioner on
Grievances and Discipline Op. ## 99-9
and 2002-6


Solicitation

• Rule 7.3: Direct Contact with Prospective
Clients
• Lawyers must ensure that direct
communication with potential clients does not
amount to improper client solicitation.
• Rule 7.3 does not apply to communications
sent in response to requests from clients or
prospective clients.
• General announcements by lawyers, like
changes in firms or addresses, do not
constitute solicitation from a client known to
be in need of legal services.


Is Business Tweeting Solicitation?

• A woman (potential client) was loading
groceries into her car. Someone drove by
and hit her car.
• She tweeted: Is it smart to post photographs
of car accidents online? Can insurance
companies use this against you?
• Direct Message from Lawyer: “If you are
interested in suing the other driver, I’d be glad
to help out.”


Is Business Tweeting Solicitation?

• Lawyer likely used Twitter Alerts
– Setup email alerts based on specific
keywords that are relevant to your practice.
– Alerts by Area and Zip Code
• Lawyer was alerted if/when those key
terms are tweeted within a certain
number of miles from the zip code
where the lawyer practices law.
• Likely solicitation if no prior relationship


Answering Questions Online

• AVVO and LinkedIn most common
• Solicitation if you say, “call me for more”
• Solicitation if you ask for email / phone
number for “more detailed response”
• Use same common sense as soliciting
stranger’s legal work


Confidentiality

• Rule 1.6: Confidentiality of Information
• A lawyer shall not reveal information relating
to the representation of a client, including
information protected by the attorney-client
privilege under applicable law, unless the
client gives informed consent, the disclosure
is impliedly unauthorized. . . .
• This limits a lawyer from disclosing the
identity of clients without proper authorization.
• Lawyers must be careful not to post client
information on public networking websites.


Comments on Blogs and Answers

• Attorneys notoriously love to tell war
stories
• Can’t give enough details for someone
remotely familiar with your client (or
adversary) to know what it is
• EX: Fast food hamburger restaurant
headquartered in central Ohio (not
Wendy’s)


Attorney – Client Relationship

• The Model Rules are silent on the issue of the
formation of an attorney-client relationship
• Lawyers should supply only general information to
avoid inadvertently creating an attorney-client
relationship by giving advice or answering legal
questions online.
• But the Restatement Third of the Law Governing
Lawyers, Section 14 states:
– A relationship of client and lawyer arises when: (1) a person
manifests to a lawyer the person’s intent that the lawyer
provide legal services for the person; and. . . (b) the lawyer
fails to manifest lack of consent to do so, and the lawyer
knows or reasonably should know that the person
reasonably relies on the lawyer to provide the services.


Attorney – Client Relationship

• Answering LinkedIn or AVVO questions
or a direct inquiry by another Facebook
or Twitter member.
• Inadvertent attorney-client relationships
still have all of the conflicts issues that
attorneys must consider.


Conflict of Interest

• Rule 1.7 Conflict of Interest
• A lawyer’s acceptance / continuation of
a client or matter creates a conflict if:
– Directly adverse
– Substantial risk of material limitation
– Waived by meeting competent diligent
representation and informed consent,
confirmed in writing (unless
nonconsentable).


Whole Foods

• Though not a lawyer – a lawsuit did
arise
• CEO assumed secret identity
• Caused Wild Oats’ stock to plummet
• Whole Foods bought Wild Oats for a
song
• SEC came down hard on CEO
• Obviously, CEO had conflict of interest


Misleading Communications

• Rule 7.1: Communications Concerning a
Lawyer’s Services
• A lawyer shall not make or use a false,
misleading, or nonverifiable communication
about the lawyer or the lawyer’s services.
• A communication is false or misleading if it
contains a material misrepresentation of fact
or law or omits a fact necessary to make the
statement considered as a whole not
materially misleading.


Client Testimonials / Case Results

• Similar to Misleading Communications
• Lawyers should be careful not to post client
testimonials or case results that are not verifiable.
• While the prohibition against client testimonials have
been superseded, Model Rule 7.1 (just discussed)
must be followed
• The Model Rule, which came into effect in 2007,
retains the prohibition on unverifiable claims.
• Therefore, “whatever means are used to make known
a lawyer’s services, statements about them must be
truthful.”


Client Testimonials / Case Results

• The Ohio Supreme Court Opinion 2000-6
further states that:
• “A law firm’s public communication of client quotations describing the
general nature of the legal services provided, responsiveness of the law
firm, and other non-substantive aspects of the firm’s representation is
improper under the professional rules of conduct. This view is based
on the current rules in the Ohio Code of Professional Responsibility and
is consistent with ABA Model Rule 7.1, the Comment thereto, and the
advice offered by the Board in Opinion 89-24.”

• Therefore, it may be a good idea to ensure
that client testimonials are verifiable to an
objective degree or avoid client testimonials
altogether.

Specialties

“Thou shalt not fill out LinkedIn specialization
box without appropriate caveats.”


Specialties

• Supreme Court of Ohio only recognizes
a few areas of specialization
• Avoid listing specialties unless you are
actually specialized under Rule 7.4
• LinkedIn includes a “specialties” section
by default field in profiles
• Double-check your profile to ensure that
you have accurately listed (or haven’t
listed) your specialization


Specialty
• But wait. . .
• Filling in a standardized box labeled “specialties” that everyone
completes as part of their profile does not amount to holding
myself out as a specialist given the context.
• “I’m not inclined to muck up a simple profile with a bunch of
legalese because someone up at the bar stretches the meaning
of “specialties” beyond any reasonable interpretation.”
• What’s deceptive in the offline world may be perfectly clear or
acceptable in the online context. For example, a paper
advertisement by a law firm that says “We are personal injury
specialists” may confuse consumers by leading them to believe
that the firm brings unique qualifications to the table. By
contrast, listing “personal injury” as a specialty in a standardized
box is more reasonably viewed as a way of indicating a practice
area, nothing more.
Susan Cartier-Liebel


• Ohio Supreme Court Opinion 88-4 (from 1988),
though superseded by the Ohio Rule of
Professional Conduct 7-4 stated`: “A lawyer
may ethically be listed in a legal directory or law
list provided the listing does not contain a false,
fraudulent, misleading, or deceptive statement
or claim.”
• Probably refers to Martindale Hubbell listings


Law Firm Social Media Policy

1. Your firm’s malpractice insurance may
require a policy. May even have one that
you can use. If not, a qualified individual or
attorney who is also insured against
omissions should write that policy.
2. Don’t give legal advice.
3. When you discuss the law firm or law firm-
related matters, write in the first person.
You must make it clear that you are
speaking for yourself and not on behalf of
the law firm.



4. Content that is published to any website that is
related to the work you do, or related to subjects
associated with firm clients, partners, or staff,
should use a disclaimer such as this: “The postings
on this site are my own and don’t necessarily
represent my law firm’s positions, strategies, or
opinions.” Where and when possible, also include
the following: “The contents of this website are
offered for information purposes only and should
not be construed as legal advice. A visit to this
website does not create an attorney-client
relationship. You should consult with an attorney
for individual advice regarding your individual
situation.”


5. Respect copyright, fair use, and
financial disclosure laws.

6. Don’t criticize the judiciary in any way.

7. Do not use the firm logo without
permission from the marketing
department.


Thank You

Questions?


Social Media Ethics for Attorneys

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (14)

Similar to Social Media Ethics for Attorneys

Similar to Social Media Ethics for Attorneys (17)

Recently uploaded

Recently uploaded (20)

Social Media Ethics for Attorneys