The Slippery Ethical Slope of Social Media

Reprinted from:

The law is a professional service that also is a business. Doing business with prospective users of legal services should be restricted only by truth, fairness and honesty. The problem is not that lawyers are too few and are too expensive, it is that they often cannot compete for clients in a businesslike way. Unfortunately, lawyers still risk bar association discipline for using traditional marketing tactics, and that has never been more the case than in lawyers' use of social media.

Social media – whether it encompasses blogging, a LinkedIn or Facebook page, a Twitter post, or any number of other new iterations – constitutes a powerful marketing tool for lawyers by combining personalized observation with facts and insights from the lawyer's area of focus to help create new client relationships. But there are concerns about whether social media activity is freely available information, or is advertising controlled by the bar because social networking messages are available to the entire world, not just existing clients.

The American Bar Association's Commission on Ethics 20/20 Working Group on the Implications of New Technologies raised these concerns in detail in a 2010 working paper1 and recommended in 2011 that social networking should not be used for "real time electronic contact" to solicit clients and should be viewed as general communication to educate potential clients.2 The ethics rules on this issue will likely continue to evolve

Truth and Fairness

This raises a valid question about the real concern behind regulating lawyers' use of social media. It is one thing to regulate for truth and fairness in promotional statements, and to restrict hyperbole so as not to create false expectations. It is another thing to say how the communication can be framed. Bar associations seek to regulate lawyers in ways that other governing bodies do not attempt for such professionals as doctors and accountants. The losers are small firms and sole practitioners – and those clients who would benefit from learning about them through social media. So far as the ultimate concern of the client – and legal ethics – the quality of legal service and not the degree of salesmanship and promotion should be what is important.

The Internet has been the great marketing equalizer, allowing small firms to educate consumers about their services just as effectively as large firms do. Yet state bars still seek to restrict them. For example, the Virginia State Bar in 2011 charged a lawyer with professional misconduct for talking about his own completed cases on his blog without adding an advertising disclaimer that results depend upon factors unique to each case and that results in one case do not predict similar results in others. The lawyer argued that his blog consisted of news and commentary, that the information he posted was disclosed during public trials, was accurate, did not violate any confidences – and was not advertising. The state bar disagreed, and the lawyer reluctantly posted the disclaimer.3

Awareness and Contact

The social media marketing efforts of small firm practitioners are typically designed to generate awareness and to get potential clients to initiate contact, leveling the playing field among all firms. Clients with a need can decide whether the lawyer's skills match it, making the decision as educated buyers. If a social media presence is advertising, it also educates the public about lawyers and what they do.

Once prospective clients start to gather names of lawyers—either directly through Internet searches or via personal referrals—they can use social networking resources to check out the lawyers' credentials, experience and testimonials. They can use platforms like Twitter and Facebook to get feedback from current clients, and even to get a personal feel from what lawyers reveal on these sites about their personality in comments about family, hobbies and opinions. Similarly, opinions and insights on a blog may help build credibility.

For this reason, it's no coincidence that The American Bar Association's 2011 Legal Technology Survey Report of a wide cross-section of ABA members found that 42 percent of respondents said their firms maintain an online presence in social media, compared to 17 percent in 2010 – and 65 percent of individual respondents said that they personally have an online professional presence, obviously including a sizeable number who maintain such a presence even if their firms don't.4 These are ways to be memorable and differentiated from other lawyers.

Conduct and Morality

But what happens when the differentiation in social media use is too great? Then lawyers could be in a different kind of ethical trouble. Several years ago the Florida Board of Bar Examiners' Character and Fitness Commission recommended that the board consider expanding its review of personal Web sites during background investigations "as deemed necessary," and decided to adopt a policy that the investigation of social networking Web sites be conducted on a case-by-case basis. Applicants' Facebook pages and similar social media sites could be reviewed where there previously was evidence of substance abuse, or even flippant reference to alcohol or drug consumption, as well as evidence of "candor concerns."5

This is a far cry from major ethics concerns like dipping into client trust accounts. That's particularly so when the commentary on Rule of Professional Conduct 8.4 about unethical conduct admits that there are "matters of personal morality . . . that have no specific connection to fitness for the practice of law." In today's society, no one, including lawyers, seems exempt from scrutiny and questioning about their conduct as revealed on social media.

Judges and "Friends"

However, that may depend on which side of the bench you're on. While lawyers are restricted in their use of social media, judges apparently are not. Bar associations in Ohio, Kentucky, New York and South Carolina have ruled that judges can "befriend" attorneys and others on social networking sites, provided that they tread carefully. The Ohio decision, for example, held that judges should not make comments online about matters pending before them, interact with an individual or organization in ways that would erode confidence in the judge's impartiality in matters that come before the court, or use social networking sites to obtain information regarding a matter before them.6

This seems not good enough. How can a judge know that someone who is a "friend" today won't be a party or lawyer in court tomorrow? It was on that basis that in 2009 the Judicial Ethics Advisory Committee for the Florida Supreme Court decided that judges could not add lawyers who appear before them as friends online. The simple fact is that judges' participation in social media networks can well be seen as a per se violation of the appearance of impartiality.

Prospects and Clients

All of the issues raised in this article leave no definitive conclusions. The ethical issues relating to social media use are still evolving, as are social networks themselves. On the surface, it would seem that the momentum for social media use in the legal profession cannot be held back. However, such media are still "broadcasting" in the purest sense of that now quaint word. FacebookandLinkedInare available to the world at large, as is the lawyer, judge or other legal professional who uses them. Prudence should dictate that the information provided should be through the lens of a legal practice. That is, if it has a bearing on a lawyer's areas of emphasis and so has the possibility of generating new business, then it is likely appropriate. Even if it is personal, it has to have relevance to clients and prospective clients. And if there are gray areas of any kind, seeking an ethics opinion from bar counsel may be the better part of valor.

One final thought. Social media may reach a number of potential clients, but they also reach many more people who don't have any interest in a given lawyer or law firm. And the firm is paying for all those disengaged listeners, in terms of the time that consistent online marketing requires. When pursuing social media, lawyers should never forget the necessity to continue bonding with existing clients. Maintain loyalty through caring and effective counsel and these very same clients can be your advocates with others in ways that a Twitter post can never match.

¹ ABA Commission on Ethics 20/20, "Issues Paper Concerning Lawyers' Use of Internet Based Client Development Tools", 9/20/10

² ABA Commission on Ethics 20/20, "Initial Draft Proposals on Lawyers' Use of Technology and Client Development" , 6/29/11

³Panel: Richmond lawyer broke rule

⁴"2011 ABA Legal Technology Survey Report," pp. xii –xv).

⁵ On Facebook? FBBE may be planning a visit

⁶Ohio Supreme Court opinion 2010-7 (12/3/10)