----- 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.
2013-01-10 Attorney Advertising Update
Attorney Advertising Update:Websites, Social Media, and BlogsD. Todd Smith January 10, 2013
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?
Am I Likely to Benefit?• Solo/small firm practitioners: Does your law firm have an internet presence? How else do clients find you?• Practitioners in a firm of any size: Would you like to establish a niche or a ―personal brand‖?
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
Advertising Rules: Part VII of the TDRPC• New: Violations may also subject lawyers to liability under civil barratry statute
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
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
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
Social Media Platforms for Lawyers• Blogs • Legal OnRamp• Twitter • Martindale-Hubbell• Facebook • LawLink• LinkedIn • Justia• Google Plus • Yelp • Foursquare• YouTube/Vimeo • Pinterest• Avvo• JD Supra A few examples…• Texas Bar Circle• Lawyers.com
Examples of Social Media’s Reach Thanks, Jessie Tilton!
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
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
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
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
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
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
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
IC 17 on Blogs and Status Updates―Blogs or status updates considered to beeducational or informational in nature arenot required to be filed with the AdvertisingReview Department. However, attorneysshould be careful to ensure that suchpostings to not meet the definition of anadvertisement subject to the filingrequirements.‖
IC 17 on Landing Pages―Landing pages such as those onFacebook, Twitter, LinkedIn, etc. where thelanding page is generally available to thepublic are advertisements. Where accessis limited to existing clients and personalfriends, filing with the Advertising ReviewDepartment is not required.‖
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
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
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
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
What’s Wrong with These Updates?• ―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.
What’s Wrong with These Updates?• ―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.
What’s Wrong with These Updates?• ―Won a million dollar verdict. Tell your friends to check out my website.‖ Construed together, this could be read assoliciting employment.• ―Won another personal injury case. Call me for a free consultation.‖ Offer for free consultation may be read as soliciting employment.
LinkedIn Example of IssuesCaution: 7.02(4) prohibits comparisons to other lawyer’sservices, unless substantiated by verifiable objective data.This is probably ok.