How To Keep Clients (And Not Lose Clients)


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Colorado Bar Association CLE class material from the March 9th class "How to Keep Friends (And Not Loss Clients)"

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How To Keep Clients (And Not Lose Clients)

  1. 1. How to Keep Clients (and Not Lose Friends): An Introduction to the Ethics of Social Media By Elizabeth Lewis Law Office of E.C. Lewis, P.C.
  2. 2. What is social media? <ul><li>Social media is the use of Internet and web-based applications to communicate to one or more individuals. </li></ul><ul><li>Social media can be considered personal communication or broadcasting depending on the number of people that the message reaches. </li></ul>
  3. 3. Personal Communication <ul><li>Instant messaging </li></ul><ul><ul><li>Typically between two people </li></ul></ul><ul><li>Personal websites </li></ul><ul><ul><li>Personal blog </li></ul></ul><ul><li>Text messaging </li></ul><ul><ul><li>Typically between two people </li></ul></ul>
  4. 4. Broadcast Media <ul><li>Broadcast media is meant to be read by more than just friends and family: </li></ul><ul><ul><li>Professional communications </li></ul></ul><ul><ul><li>Special interest sites </li></ul></ul>
  5. 5. Professional Communication <ul><li>Company website </li></ul><ul><li>LinkedIn </li></ul><ul><li>Legal sites (,, etc) </li></ul><ul><li>Facebook fanpages </li></ul>
  6. 8. Personal/Professional Sites <ul><li>Facebook </li></ul><ul><ul><li>Typically your profile is personal </li></ul></ul><ul><ul><li>Typically your fanpage is business or special interest </li></ul></ul><ul><li>Twitter </li></ul><ul><li>Blogging </li></ul>
  7. 12. Special Interest Sites <ul><li>Sites meant for individuals all interested in same thing to communicate </li></ul><ul><ul><li>Music - </li></ul></ul><ul><ul><li>Photography - Picasa </li></ul></ul><ul><ul><li>Encyclopedia - Wikipedia </li></ul></ul><ul><ul><li>Product reviews - </li></ul></ul><ul><ul><li>Genealogy – </li></ul></ul>
  8. 14. Why does ethics play a role in using social media? <ul><li>Many forms of social media can be seen as advertising. </li></ul><ul><li>Overriding rule - Colo. RPC 8.4 states it is misconduct to “engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer’s fitness to practice law”. </li></ul>
  9. 15. Can I Advertise Online? <ul><li>Yes – Colo. RPC 7.2 states “Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.” </li></ul>
  10. 16. Colo. RPC 7.1. Communications Concerning a Lawyer’s Services <ul><li>A lawyer cannot: </li></ul><ul><ul><li>make false or misleading communication about his services. </li></ul></ul><ul><ul><li>send unsolicited communications concerning his services. </li></ul></ul><ul><ul><li>send mail that falsely implies a degree of importance. </li></ul></ul>
  11. 17. Colo. RPC 7.1. Communications Concerning a Lawyer’s Services (Cont.) <ul><li>A lawyer: </li></ul><ul><ul><li>must tell clients that they may be liable for costs. </li></ul></ul><ul><ul><li>can tell clients that initial consultation is free. </li></ul></ul><ul><ul><li>cannot use words like “cut-rate”, “lowest” and “cheap” to characterize his services. </li></ul></ul>
  12. 18. Colo. RPC 7.1. Communications Concerning a Lawyer’s Services (Cont.) <ul><li>A lawyer cannot: </li></ul><ul><ul><li>state anything about his abilities unless he can factually substantiate those claims. </li></ul></ul><ul><ul><li>state unsubstantiated characterizations of past results. </li></ul></ul><ul><ul><li>permit, encourage, or assist in a third party to make communications on behalf of him that violate the ethical rules. </li></ul></ul>
  13. 19. Colo. RPC 7.1. Communications Concerning a Lawyer’s Services (Cont.) <ul><li>A lawyer cannot </li></ul><ul><ul><li>advertise for clients in a field of practice where he is not competent. </li></ul></ul><ul><ul><li>aggregate the experience of everyone in his firm if it is misleading to potential clients. </li></ul></ul>
  14. 20. Colo. RPC 7.2. Advertising <ul><li>A lawyer must: </li></ul><ul><ul><li>make sure that all communication contains the name and office address of at least one lawyer or law firm responsible for its content. </li></ul></ul><ul><ul><li>make sure that all solicitation is done by the prospective client and not the other way around. </li></ul></ul>
  15. 21. Colo. RPC 7.2. Advertising (Cont.) <ul><li>A lawyer can include information such as: </li></ul><ul><ul><li>his name or firm name </li></ul></ul><ul><ul><li>his address and telephone number </li></ul></ul><ul><ul><li>the kinds of services he will undertake </li></ul></ul><ul><ul><li>the basis on which his fees are determined </li></ul></ul><ul><ul><li>his foreign language ability </li></ul></ul><ul><ul><li>names of references </li></ul></ul><ul><ul><li>other information that might invite the attention of those seeking legal assistance </li></ul></ul>
  16. 22. Colo. RPC 7.2. Advertising (Cont.) <ul><li>Lawyers can: </li></ul><ul><ul><li>pay for advertising and communications including the costs of on-line directory listings, domain-name registrations, and banner ads. </li></ul></ul><ul><ul><li>pay marketing services and website designers. </li></ul></ul>
  17. 23. Colo. RPC 7.3. Direct Contact with Prospective Clients <ul><li>Lawyers cannot: </li></ul><ul><ul><li>use real-time electronic contact to solicit professional employment unless the prospective client has made known to the lawyer a desire to be contacted. </li></ul></ul><ul><ul><li>use electronic means to solicit professional employment from a prospective client if the lawyer knows or reasonably should know that the person is already represented by a lawyer. </li></ul></ul>
  18. 24. Colo. RPC 7.3. Direct Contact with Prospective Clients (Cont.) <ul><li>A lawyer must: </li></ul><ul><ul><li>include the words “Advertising Material” at the beginning and ending of any electronic communication unless the recipient is family or a prior professional contact. </li></ul></ul><ul><ul><li>must keep a copy of each communication for four years following the sending of the communication. </li></ul></ul><ul><ul><li>cannot contact someone repeatedly if he does not receive a response. </li></ul></ul>
  19. 25. Colo. RPC 7.4. Communication of Fields of Practice <ul><li>A lawyer: </li></ul><ul><ul><li>may communicate the fact that he does or does not practice in particular fields of law or only practices in certain fields </li></ul></ul><ul><ul><li>may not state or imply that he specializes in a particular field of law unless he has been certified as a specialist by an organization approved by Colorado or the ABA. </li></ul></ul><ul><ul><li>must state that “Colorado does not certify lawyers as specialists in any field.” if he uses the word specializes anywhere in his advertisements. </li></ul></ul>
  20. 26. Colo. RPC 7.5. Firm Names and Letterheads <ul><li>A lawyer </li></ul><ul><ul><li>cannot use a firm name, letterhead or other professional designation that violates Rule 7.1. </li></ul></ul><ul><ul><li>can use a trade name.* </li></ul></ul><ul><ul><li>can have a distinctive website address.* </li></ul></ul><ul><li>*must comply with other rules and states if applicable </li></ul>
  21. 27. Other Rules <ul><li>Colo. RPC 1.6. Confidentiality of Information: A lawyer cannot reveal information relating to the representation of a client unless the client gives informed consent. </li></ul><ul><li>Colo. RPC 1.18. Duties to Prospective Client: Anyone who discusses legal issues with a lawyer is a prospective client unless unreasonable expectations. </li></ul><ul><li>Colo. RPC 3.3. Candor Toward the Tribunal: You cannot make false statements to tribunal. </li></ul>
  22. 28. Other Rules (cont.) <ul><li>Colo. RPC 3.6. Trial Publicity: You cannot make statements before or during a case if you know there is a substantial likelihood of materially prejudicing the outcome. </li></ul><ul><li>Colo. RPC 4.1. Truthfulness in Statements to Others: You cannot makes false statements to third parties (or have other people make them on your behalf). </li></ul>
  23. 29. Real-life examples <ul><li>Philadelphia Bar Facebook case </li></ul><ul><ul><li>Attorney used misleading tactics to gain access to someone’s Facebook page. </li></ul></ul><ul><ul><li>Philadelphia stated that it was unethical as the case involved lying to a third party. </li></ul></ul>
  24. 30. Pay-per-click <ul><li>CT and MD pay-per-click cases </li></ul><ul><ul><li>Question as to whether you can pay referral fees to websites that you have exclusivity contracts with is still up for debate. </li></ul></ul>
  25. 31. Bar admissions <ul><li>FL Bar Admission </li></ul><ul><ul><li>Florida is currently on a case-by-case basis requesting social media site information from those taking FL bar – including to determine whether unauthorized practice of law occurred. </li></ul></ul>
  26. 32. Blogging <ul><li>Blogging (Illinois) </li></ul><ul><ul><li>IL suspended license of PD who used personally identifying information about clients and bad-mouthed judges in blogs. </li></ul></ul><ul><li>Blogging (CA) </li></ul><ul><ul><li>CA suspended attorney who posted updates about case he was a juror on as judge said jurors could not speak about case during trial. </li></ul></ul><ul><li>Blogging (FL) </li></ul><ul><ul><li>FL suspended attorney who posted comments about judge he practiced in front of. </li></ul></ul>
  27. 33. Facebook friends <ul><li>Friending judges </li></ul><ul><ul><li>FL has stated that judges cannot friend anyone that may practice in front of them </li></ul></ul><ul><ul><li>NY, SC, TX allow it though as they do not see it as any different than socializing with judges outside of court </li></ul></ul>
  28. 34. Ratings websites <ul><li>Questions about ratings </li></ul><ul><ul><li>SC decision </li></ul></ul><ul><ul><ul><li>SC issued opinion on site (suspect is AVVO) that said if you claim site you are responsible for ratings posted on it by users. </li></ul></ul></ul><ul><ul><li>AVVO response </li></ul></ul><ul><ul><ul><li>AVVO responded that the recommendations provided the public with information necessary to choose an attorney. </li></ul></ul></ul>
  29. 35. Tell the truth <ul><li>TX Facebook case </li></ul><ul><ul><li>Attorney asked for continuance saying father had died. Judge was friend with her on Facebook and saw pictures of her partying and going out. </li></ul></ul>
  30. 36. Final Rules <ul><li>Colo. RPC 4.2. Communication with Person Represented by Counsel: You cannot communicate with someone represented by an attorney. </li></ul><ul><li>Colo. RPC 4.3. Dealing with Unrepresented Person: You must not state or imply you are disinterested and cannot offer legal advice to an unrepresented party. </li></ul><ul><li>Colo. RPC 5.1. Responsibilities of a Partner or Supervisory Lawyer: Partners have responsibility over the lawyers conduct underneath them. </li></ul>
  31. 37. Final Rules <ul><li>Colo. RPC 5.2. Responsibilities of a Subordinate Lawyer: A lawyer is bound by the Rules even if a supervisory lawyer tells him to act in a way that violates the Rules. </li></ul><ul><li>Colo. RPC 5.3. Responsibilities Regarding Nonlawyer Assistants: A lawyer is responsible for his assistants’ actions. </li></ul><ul><li>Colo. RPC 2.1. Advisor: A lawyer can render candid advice and may refer not only to law but to other considerations such as moral, economic, social, and political factors. </li></ul>
  32. 38. Final Rules <ul><li>Colo. RPC 3.4. Fairness to Opposing Party and Counsel: A lawyer cannot obstruct another party’s access to evidence or alter, destroy, or conceal evidence. </li></ul><ul><li>Colo. RPC 3.5. Impartiality and Decorum of the Tribunal: A lawyer shall not seek to influence a judge, juror, prospective juror, or other official or communicate ex parte with such a person. </li></ul><ul><li>Colo. RPC 3.9. Advocate in Nonadjudicative Proceedings: A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding may engage in ex parte communications. </li></ul>
  33. 39. Final Rules <ul><li>Colo. RPC 4.4. Respect for Rights of Third Persons: A lawyer must respect the rights of third persons. </li></ul><ul><li>Colo. RPC 8.2. Judicial and Legal Officials: There are special rules involving judges and legal officials. </li></ul><ul><li>Colo. RPC 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law: A lawyer cannot practice law in a jurisdiction without a license to practice law issued by that jurisdiction. </li></ul>
  34. 40. Final thoughts <ul><li>Don’t say anything on social media sites that you wouldn’t say face-to-face. </li></ul><ul><li>Be honest. </li></ul><ul><li>Give disclaimers. </li></ul><ul><li>If in doubt, ask questions. </li></ul><ul><li>Follow the same rules for online communication that you would for offline communications. </li></ul><ul><li>Use common sense. </li></ul>