Social Media and Ethics Rules: Dos and Don'ts

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Slides of presentation to the Austin Bar Association Solo/Small Firm Section on October 24, 2013

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  • ----- Meeting Notes (1/10/13 11:23) -----There is no First Amendment right to employment. Inappropriate photos or comments can keep you from getting hired or worse.
  • Social Media and Ethics Rules: Dos and Don'ts

    1. 1. Social Media and Ethics Rules: Dos and Don’ts Sara Foskitt (@foskitt & @FoskittRealty) D. Todd Smith (@dtoddsmith & @SmithLawGroup) Michelle Cheng (@foodiethenew40 & @AustinTrialLaw)
    2. 2. Overview • Focus is on social media in context of advertising rules • Why should lawyers use social media to promote their practices? • How can it be done ethically?
    3. 3. Am I Likely to Benefit? • Does your law firm have an internet presence? How else do clients find you? • Would you like to establish a niche or a ―personal brand‖?
    4. 4. Advertising Rules: Part VII of the TDRPC • Purpose is to protect the public from false, misleading, and deceptive communications • Rules specify conduct for attorneys who promote services to public • Violations subject lawyers to discipline
    5. 5. Advertising Rules: Part VII of the TDRPC • New: Violations may also subject lawyers to liability under civil barratry statute
    6. 6. Why Market Via the Internet? • As of 12/2011, the lawyer/resident ratio in Texas was 1/280 • We have more than 86,000 active lawyers and add 3,000 new lawyers per year • Lawyering is becoming more of a commodity
    7. 7. Why Market Via the Internet? • More competition for less work requires more creative and effective marketing • The Internet is a cheap and effective way to reach large numbers of potential clients
    8. 8. Why Use Social Media? • Establish personal/firm brand and market reach • Share expertise and news • Increase firm visibility and traffic • Create goodwill by pointing to helpful resources • Can show a little of yourself and help potential clients get to ―know‖ you
    9. 9. Social Media Platforms for Lawyers • • • • • Blogs Twitter Facebook LinkedIn Google Plus • YouTube/Vimeo • Avvo • JD Supra • Texas Bar Circle • Lawyers.com • • • • • • • Legal OnRamp Martindale-Hubbell LawLink Justia Yelp Foursquare Pinterest A few examples…
    10. 10. Facebook – Personal Page or Business Page?
    11. 11. Google+
    12. 12. Google+ - Personal Page vs. Business Page?
    13. 13. Examples of Social Media’s Reach
    14. 14. Examples of Social Media’s Reach Thanks, Jessie Tilton!
    15. 15. The Power of Social Media • More than 900 million active Facebook users – over half log on to FB on any given day. • 20% of all internet users use Twitter or another service to share or view updates • Business use: Twitter up 250%, Facebook up 192% since Spring 2009 • No fad—a fundamental shift in communication
    16. 16. Social Media Etiquette • • • • Find your niche and focus on that area Don’t sell Don’t over-post The more positive you are, the more people will want to do business with you • Be careful who you add as your friend • Use common sense
    17. 17. What You Post May Hurt You Source: Forbes
    18. 18. What You Post May Hurt You Source: Forbes
    19. 19. And Then There Are the Advertising Rules • Rule 7.02 prohibits false, misleading, or deceptive communications – Material misrepresentations or omissions – Guaranteeing results or creating unjustified expectations • Rules 7.03 & 7.05 govern prohibited solicitations (including digital) and payments • Rule 7.04 & 7.07 cover advertisements and filing requirements
    20. 20. Advertising Rules and Social Media • Filing requirement applies when: – electronic communication addresses the qualifications or the services of lawyer or firm – not exempt under DR 7.07(e) – generally available to the public • Communicating attorney must file the communication with the ARC before or concurrently with first dissemination
    21. 21. Evolution of Ethical Concerns • In 2005, SCOTX expressly applied the Advertising Rules to electronic or digital communications • Blogging took root shortly thereafter, followed by Facebook, Twitter, and others • No one knew for sure how the ARs would apply to social media • Issue has reached new importance, since new statute treats violation of ARs as barratry
    22. 22. The ARC’s Take: New Comment 17 • In 2010, the Advertising Review Committee released revised Interpretive Comment 17 • Purpose was to address issues with different kinds of Internet-based advertisements, including blogs, social media, and web-based display ads
    23. 23. The ARC’s Take: New Comment 17 • Focus is whether they are advertisements subject to filing requirements, but helps guide behavior on social media for all purposes
    24. 24. IC 17 on Blogs and Status Updates ―Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings to not meet the definition of an advertisement subject to the filing requirements.‖
    25. 25. IC 17 on Landing Pages ―Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.‖
    26. 26. What Does This Mean? • Electronic communications like social media posts are advertisements in the public media subject to the filing requirements of DR 7.07 unless exempt • New Pitfall: Gov’t Code 82.065 now provides that solicitation conduct violating disciplinary rules constitutes barratry
    27. 27. What Does This Mean? • Violate the DRs in social media = exposing oneself to barratry under new statute • Fee forfeiture, damages, and monetary penalty are among remedies available— and they are not limited to actual clients
    28. 28. Where Is the Line? • Exercise caution about providing information beyond what is exempt under DR 7.07(e) – – – – – – – – – ―Tombstone‖ information Areas of practice Dates of admission Technical and professional licenses Foreign language ability Prepaid group legal service plans Acceptance of credit cards Initial consultation fee or fee schedule Sponsorship of charitable, civic, or community program or event or PSA • None of this needs to go before Ad Review
    29. 29. Where Is the Line? • But the ARC says filing is not required for blogs or status updates that are merely educational or informative in nature • The most common types of legal-related blog and social-media posts do not trigger filing requirements or related rules, as long as the content would not otherwise be considered an advertisement and is not false or misleading • Again, exercising good judgment is key
    30. 30. Do These Updates Pass Muster Under the Ethical Rules? • ―Just published an article on wage and hour breaks. Let me know if you would like a copy‖ Merely states information about an article the author published. This is OK. • ―Case finally over. Unanimous verdict! Celebrating tonight.‖ Factual, so probably OK.
    31. 31. Do These Updates Pass Muster Under the Ethical Rules? • ―Another great victory in court today! My client is delighted. Who wants to be next?‖ ―My client is delighted‖ could be a client testimonial. ―Who wants to be next‖ is not exempt and arguably solicits the lawyer’s services.
    32. 32. Do These Updates Pass Muster Under the Ethical Rules? • ―Won a million dollar verdict. Tell your friends to check out my website.‖ Construed together, this could be read as soliciting employment. • ―Won another personal injury case. Call me for a free consultation.‖ Offer for free consultation may be read as soliciting employment.
    33. 33. LinkedIn Example of Issues Caution: 7.02(4) prohibits comparisons to other lawyer’s services, unless substantiated by verifiable objective data. This is probably ok.
    34. 34. Gene Major, director of the State Bar of Texas Attorney Compliance Division, …says he thinks LinkedIn endorsements comply with advertising rules, because there's nothing "false, misleading or deceptive" about another person clicking a button to indicate a lawyer is competent in an area of law.‖
    35. 35. • DR 7.03(a) violations?
    36. 36. Not unethical. Good marketing, until she says ―hire me.‖ Could be breaching confidentiality?
    37. 37. Social Media and Ethics Rules: Dos and Don’ts Sara Foskitt (@foskitt & @FoskittRealty) D. Todd Smith (@dtoddsmith & @SmithLawGroup) Michelle Cheng (@foodiethenew40 & @AustinTrialLaw)

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