Violations of Social Media Conduct
More and more lawyers are using social media to take advantage of the effortless accessibility to the public. With so many law firms and lawyers participating, it is wise to review the professional conduct rules governing communication and advertising. Understanding the rules while navigating the uncharted waters of social media can make the difference between great marketing and a serious ethics violation.
Social media provides countless benefits to legal professionals from the solo practitioner to mega firms. It can allow a lawyer to instantaneously connect to potential clients in a less formal and more economical way. According to the most recent ABA Legal Technology Survey Report, respondents reported many professional reasons for participating on social media sites with career and client development being the top two drivers. Among all the networking sites, LinkedIn and Facebook were the most popular with lawyers. However, before pressing that “connect” or “friend” button, one would be prudent to review the Model Rules of Professional Conduct 7.1-7.4 to ensure the ethics committee members do not become “friends” as well.
The Model Rules of Professional Conduct that govern the traditional methods of marketing, such as newspaper and television advertisements, also apply to these modern channels. The rules generally prohibit “false or misleading” statements, including statements that are likely to create an unjustified expectation about the results that one can achieve. This rule applies whether communication is on paper or online.
With sites like Facebook, LinkedIn and Google that offer the opportunity for client reviews and testimonials, lawyers need to be careful about what is posted on their profiles. Because the rules generally prohibit setting unjustified expectations about results, attorneys should make sure those reviews do not contain references to specific jury award amounts or promises that the attorney can get the same great results for other clients.
Be mindful that legal ethics regulators across the country are beginning to pay close attention to whether lawyers’ advertising and marketing through their online profiles violate the Model Rules.
In fact, a state bar opinion recently examined an attorney’s online postings to determine whether certain comments would be subject to the professional responsibility rules and standards governing attorney advertising. The committee addressed several specific remarks including one that stated, “Won a million dollar verdict. Tell your friends to check out my website!” They determined that this post was a violation of the ethics rules because the words “Tell your friends to check out my website” conveys a message or offer “concerning the availability for professional employment.” Since the attorney is asking the reader to tell others to look at her website so that they may consider hiring her, this communication, in accordance with the Model Rules, must contain the word “Advertisement”.  Thus, a short comment giving oneself a “pat on the back” for a recent success could land a lawyer in trouble. Also remember that although many states follow the ABA Model Rule standard, some states impose a stricter requirement when it comes to advertising and communication.
For example, the Arkansas Rules of Professional Conduct maintain that a communication is false or misleading if it contains a testimonial or endorsement. Therefore, one should review the applicable state Model Rules to ensure compliance in the relevant jurisdictions.
How Should You Curb Your Social Media Conduct?
You may not necessarily think sending a “friend of a friend” a Facebook message informing them of your services as traditional solicitation. It is just a friendly, informational message, right?
Well, the Model Rules define solicitation as targeted communication initiated by a lawyer that is directed to a specific person and can reasonably be understood as offering to provide legal services. Therefore, a lawyer cannot use real-time electronic contact, such as instant messenger or Facebook messenger, to contact prospective clients when a significant motive for doing so is pecuniary gain. Consequently, a Facebook friend request or LinkedIn invitation that offers to provide legal services to a non-lawyer may be considered a prohibited solicitation.
As a professional, it is your responsibility to police your own online profiles. If an endorsement or recommendation is not accurate, it should be removed.
Although social media networks provide so many fantastic benefits, the instant and easy accessibility may not leave time for caution or reflection before posting. Avoid posting or blogging statements regarding results obtained on behalf of clients to avoid unjustified expectations. It is also important to monitor one’s own profile for accuracy, including endorsements and recommendations written by others to avoid misrepresentations.
When in doubt, consider how an online post would translate as a traditional newspaper or television advertisement and adjust the content accordingly.
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 ABA Legal Technology Survey Report, 2015 (collected responses from almost 1000 lawyers from all over the US, ranging from solos to firms with more than 500 lawyers in diverse practice areas).
 ABA Legal Technology Survey Report, 2015.
 Mod. Rules Prof. Cond. § 7.1
 The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2012-186.
 AR Rules of Prof. Con. § 7.1(b).
 Mod. Rules Prof. Con. § 7.3(a).
 Mod. Rules Prof. Con. § 7.3(a) (A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer).