In Part 2 of the presentation on the ethics of social media for lawyers, I discuss the ethical considerations necessary for attorneys who market their firms on social media.

1. THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles Byrum & Horne, LLP
www.thecyberadvocate.com

2. THE ETHICS OF SOCIAL MEDIA
PART 2:
MARKETING YOUR PRACTICE
ON SOCIAL MEDIA

3. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Remember:
This.
Is.
Advertising.

4. MARKETING YOUR FIRM VIA SOCIAL MEDIA
NC RULES OF PROFESSIONAL CONDUCT
Advertising:
7.1 – Communications Concerning Lawyer’s Services
7.2 – Advertising
7.3 – Direct Contact with Potential Clients
7.4 – Communication of Fields of Practice and
Specialization

5. MARKETING YOUR FIRM VIA SOCIAL MEDIA
NC RULES OF PROFESSIONAL CONDUCT
Other important provisions:
1.1 – Competence
1.6 – Confidentiality
1.9 – Duties to Former Client
1.18 – Duties to Prospective Client
3.6 – Trial Publicity

6. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Blog/Social Media Page/Post/Message
Applicable Rule(s): 7.1
To Comply: Cannot be false or misleading
If it’s unethical in person, it’s unethical on Social Media
MUST include all necessary facts
2000 FEO 1
Comparisons with other attorneys require factual basis

7. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Related Issues:
Marketing Videos

8. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Related Issues:
Marketing Videos

9. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Related Issues:
Marketing Videos
Ghostwriting

10. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: A client posts a testimonial on your page
Applicable Rule(s): 7.1 & 7.2; 2012 FEO 8
To Comply: Review every testimonial, edit or remove
where necessary/possible
ALWAYS include a disclaimer where possible
2012 FEO 1
If you have editorial control, post must comply with the rules

11. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: A client posts a testimonial on your page
Applicable Rule(s): 7.1 & 7.2; 2012 FEO 8
To Comply: Review every testimonial, edit or remove
where necessary/possible
REMEMBER:
Your clients likely don’t know the rules. Make sure their endorsement
is in context, or it might be considered misleading!
2012 Formal Ethics Opinion 8

12. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Recommendations & Endorsements
Applicable Rule(s): 7.1 & 7.2
To Comply: No astroturfing, must be based on actual
experience.
Just like testimonials, recommendations & endorsements must meet
ethical rules if you have editorial control

13. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Recommendations & Endorsements
Applicable Rule(s): 7.1 & 7.2
To Comply: No astroturfing, must be based on actual
experience.
Don’t recommend a lawyer on quid pro quo basis
Don’t recommend someone you don’t know
No Astroturfing

14. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Direct messaging prospective clients
Applicable Rule(s): 7.3
To Comply: Don’t do on Social Media what you couldn’t
do in person
If they’re already a “friend” or “connection,” it’s likely that direct
solicitation would be permitted
HAS NOT BEEN ADDRESSED IN NC!

15. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Direct messaging prospective clients
Applicable Rule(s): 7.3
To Comply: Don’t do on Social Media what you couldn’t
do in person
Although not yet addressed, Tweeting your availability to someone
just in an accident is probably solicitation

16. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Direct messaging prospective clients
Applicable Rule(s): 7.3
To Comply: Don’t do on Social Media what you couldn’t
do in person
Hypothetical:
You’re a personal injury attorney, and you just heard about a bad
train accident. Is it unethical to tweet about your services using a
hashtag related to the crash? What about a YouTube video with crash-
related tags for searches?

17. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Listing skills, experience, practice areas
Applicable Rule(s): 7.4
To Comply: Don’t use “specialize;” be very conscious of
how your profile can be read
REMEMBER: Even if lawyers can specialize, law firms cannot
LinkedIn Company pages should NEVER list “specializing”
If you list skills, edit recommendations and testimonials that overstate
or incorrectly describe your areas of expertise

18. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Listing skills, experience, practice areas
Applicable Rule(s): 7.4
To Comply: Don’t use “specialize;” be very conscious of
how your profile can be read
If you’re relying on a disclaimer, make sure it actually disclaims
– Disclaimer must be clear and unambiguous
– Must be located where visitors are likely to see it

19. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Other Jurisdictions:
NY State Bar Association Opinion 972
Companies may not list practice areas in any section titled “Specialties,” even if they
have no control over title (LinkedIn Company Pages)
Philadelphia Bar Association Opinion 2012-8
Attorneys’ use of the “Skills & Expertise” endorsements on LinkedIn permissible,
provided no further representation regarding proficiency so as to indicate
specialization is made

20. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Responding to Negative Reviews
One day, you see that a former client posted this:
“[Your law firm] is terrible, I wouldn’t recommend them to
anyone. They took $2,000 up front, knowing full well that
North Carolina law prevented me from bringing a case. Not
only are they refusing to return the $2,000, they want
another $1,000! They’re liars who just want your money.”

21. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Here’s how an attorney responded in real life:
“This is simply false. The person did not reveal all the facts of
his situation up front in our first and second meeting. [sic]
When I received his personnel file, I discussed the contents of
it with him and informed him that he would likely lose unless
the employer chose not to contest the unemployment
(employers sometimes do is [sic]). Despite knowing that he
would likely lose, he chose to go forward with a hearing to try
to obtain benefits. I dislike it very much when my clients lose
but I cannot invent positive facts for clients when they are not
there. I feel badly for him but his own actions in beating up a
female coworker are what caused the consequences he is now
so upset about.”

22. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Responding to a disgruntled client
Applicable Rule(s): 1.6 & 1.9
To Comply: Do not reveal client confidences; do not
disadvantage former client by your reply
Remember, a response is not always necessary!
If posted on a review site such as AVVO or Google+ that you cannot
edit, contact the service providers

23. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Responding to a disgruntled client
Applicable Rule(s): 1.6 & 1.9
To Comply: Do not reveal client confidences; do not
disadvantage former client by your reply
DO NOT REVEAL CONFIDENCES
Issue of the extent of information you’re allowed to reveal, even if the
former client “opens the door” is not clear
Rule 1.6(b)(6) allows attorneys to “respond to allegations in any
proceeding concerning the lawyer’s representation.” (emphasis
added)

24. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Blogging/Posting about your cases
Applicable Rule(s): 1.6, 1.9, 3.6
To Comply: Do not publish confidential info; do not post
comments that would be unethical in a newspaper
** This is currently a hotly debated issue! **
Do not publish:
Clients’ names
Information that reasonably lead to clients’ identification
Anything written while you’re frustrated/upset!

25. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Blogging/Posting about your cases
Applicable Rule(s): 1.6, 1.9, 3.6
To Comply: Do not publish confidential info; do not post
comments that would be unethical in a newspaper
Be careful about Social Media that include your location in your posts!
Remember – you’re responsible for your staff too!

26. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Answering legal questions via SMS
Applicable Rule(s): 1.6 & 1.18
To Comply: Use a good disclaimer; discourage disclosure
of confidential info in online discussion
Remember:
Establishing attorney-client relationship is based on the reasonable
expectations of the prospective client!
Even an excellent disclaimer doesn’t override your actions
Additional Guidance: 2011 FEO 8

27. MARKETING YOUR FIRM VIA SOCIAL MEDIA
BEST PRACTICES:
1. Remember: THE RULES STILL APPLY
2. Understand your SM tools before using them
a) Reach, strengths, and weaknesses
b) Learn how to use them effectively
3. Create a Social Media Strategy for your firm
4. Name or hire a Social Media Manager

28. THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles, Byrum & Horne, LLP
bfocht@sbhlaw.net
www.thecyberadvocate.com