Trial Magazine

The law often struggles to keep up with the fast pace of technological change. This is especially so with ethics rules and how they apply to legal advertising through social media channels. In the meantime, here are some simple rules to follow to ensure that your online advertising is ethical, legal, and effective—and that it promotes a positive image of you, your law firm, and the profession as a whole.

Choose your words carefully. Legal advertising has been regulated historically as commercial speech, which means that it has fewer First Amendment protections than other forms of speech.¹ Essentially, the Model Rules of Professional Conduct require that lawyer marketing content be truthful and not misleading, but exactly what is permissible varies significantly from state to state.²

The rules that apply to print advertising would apply equally to online advertising, so a simple online post about your latest verdict (especially if it also urges prospective clients to call you) could lead to a Bar grievance. Some lawyers are under the misimpression that these prohibitions apply to commercial accounts only, such as a law firm Facebook account, but that is not necessarily true. The extent to which your online speech is constitutionally protected in large part depends on where it is posted, the primary intent of the posted content, and whether that same website or location (such as Facebook or Instagram) includes information about cases.

For example, if someone has posted a legal question on an online forum, such as Twitter or Reddit, a lawyer would be permitted to respond. Similarly, if a prospective client posted an online request that a lawyer contact her, it would be appropriate to do so, provided the contact is in the manner specified by the prospective client.³

The ethics rules become more complicated, however, when, for instance, a distant friend posts online that he has been in a car crash. Any responsive posting by a lawyer, even if through a personal account, that offers legal services or advice likely would constitute a “solicitation” and be subject to state ethics rules, including “cooling off” periods. Efforts by lawyers to locate prospective plaintiffs through online forums that are specific to an incident (or perhaps a particular product) are likely considered solicitations and subject to state ethics rules.

To be safe, posts on your personal accounts, as well as your law firm account, must comply with ethics rules since the lines between personal and business are so easily blurred online. Use of a disclaimer, although awkward, might be required. For example, you might include something as simple as the word “Advertisement” in the post.

Some ethics commentators believe that you also may be responsible for posts from others (including friends, family, clients, and strangers) on your social media accounts that violate ethics rules, such as unsubstantiated claims that you are the “best” or that you are an “expert” or a “specialist” in a particular practice area.⁴ Ethics rules require you to control your privacy settings to limit prospective clients’ ability to see your posts (which also may be a good idea in general) and to discourage comments from others on your social media sites that would violate your local Bar rules if they were made by you.⁵

No direct solicitation. You need to be particularly careful about direct solicitation when interacting online. If state Bar ethics rules restrict you from contacting prospective clients in person, via mail, or in a phone call immediately following an incident, those same rules would apply to your online posts.⁶ Because well-meaning advice given online might create an inadvertent attorney-client relationship­, use a disclaimer with all posts and comments to protect yourself.⁷

Protect client confidences. Perhaps one of the biggest mistakes lawyers make online is the improper publication of confidential information.⁸ The classic example is when a disgruntled client posts a negative review online. The knee-jerk reaction for the lawyer may be to respond with details about the client or case to defend the quality of the representation, but this is improper. However, failing to respond is probably not the best option either since online reviews are becoming increasingly important in how people choose their lawyers. Reviews also affect how online content is ranked by search engines such as Google. 

The current ethics opinions permit a measured and proportional response to the online review, such as expressing concern in a public post about the client’s perceived bad experience and asking that the client contact you directly to discuss the matter further.⁹ Your post also should note that confidentiality rules prevent you from commenting on any circumstances relating to your representation. When dealing with negative online reviews, draft a response, take a break to cool down, and have others review the response before posting anything. Under certain circumstances, you might be able to resolve the matter directly with the client and have the negative post taken down.

Thwart online attacks. A more perplexing problem is dealing with internet “trolls” and other efforts to hijack your online content or redirect your clients to competitors. It’s critical to keep track of what is being posted so you’re aware of an online attack and can respond quickly. The first step is to set up and closely monitor search alerts for your employees’ names and your firm name. You can manage this yourself, but if you have a large firm, consider having a crisis management public relations firm on retainer to deal with attacks.

These attacks can crop up overnight and require a multifaceted, time-consuming approach, including contacting online vendors (such as Google and Yelp) to report and dispute false reviews; posting thoughtful and ethical responses seeking to resolve the conflict through a different method of private communication; improving your online ratings through a large number of favorable reviews from clients and others (which you can generally ask for directly or through a number of service providers—such as BirdEye, Podium, or BusinessCreator); and creating a large quantity of positive web content to essentially “drown out” the negativity, such as coverage of charitable work that your law firm is doing in your local community.

Other online threats (which have not yet been adequately addressed by ethics opinions) include competitors using “geofencing”to target prospective clients visiting your office with their online advertising.¹⁰ Competitors have also purchased search terms that include the names of lawyers or law firms to redirect web traffic from clients searching for a lawyer or firm by name to the competitors’ websites.¹¹

With the availability of technology 24/7, we need to resist the urge to be constantly promoting ourselves online. There is a time and place for everything. In my experience, social media experts recommend that you spend less than one-third of your social media posts asking for business with the balance of your online content focusing on the people in your firm; the good that you are doing in your community and for your clients; and education about legal, consumer, and safety issues. And don’t forget the “social” aspect of social media, which includes interacting with others online and, at times, congratulating others (who may be your competitors) on their accomplishments.

What we do matters, and an online platform provides a wonderful way to communicate in a manner that resonates with the public and future clients.

Brenda S. Fulmer is a shareholder at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla., and can be reached at BSF@SearcyLaw.com. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.

Notes

1. See Bates v. State Bar of Ariz., 433 U.S. 350 (1977); see also Cent. Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980).
2. For instance, not all state ethics rules allow lawyers to freely promote verdicts, settlements, board certifications, and specialized practices areas. See, e.g., N.C. State Bar, Formal Op. 1 (2000).
3. See, e.g., N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 1049 (2015), https://tinyurl.com/r5vhy2r.
4. See, e.g., D.C. Bar Ass’n, Ethics Op. 370 (2016), https://tinyurl.com/vwelel9; Pa. Bar Ass’n, Formal Op. 2014-300 (2014), https://tinyurl.com/t9hmwyw.
5. See, e.g., ABA Model Rules of Prof’l Conduct, R. 8.4(a); D.C. Bar Ass’n, Ethics Op. 370, https://tinyurl.com/vwelel9.
6. See, e.g., State Bar of Cal. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. No. 2012-186 (2012), https://tinyurl.com/vu35qvg.; see also Jennifer Ellis, A Guide to Social Media Disclaimers for Lawyers, Good2BSocial (Jan. 15, 2020), https://tinyurl.com/qvpwf94.
7. Katherine Erwin, Legal Advertising and Solicitation 2.0, 2Civility (Sept. 2, 2014), https://www.2civility.org/lawyer-advertising-and-solicitation/. Depending on your jurisdiction’s rules, a disclaimer may not protect you from an ethics violation. 
8. See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 480 (2018), https://tinyurl.com/sryhogt; N.Y. State Bar Ass’n Comm. on Prof’l Ethics Op. 1032 (2014), https://tinyurl.com/rdrtjm5.
9. See, e.g., Colo. Bar Ass’n, Formal Op. 136 (2019), https://tinyurl.com/yxrpzdoq; Pa. Bar Ass’n, Formal Op. 2014-200 (2014); Tex. Bar Ass’n, Op. 662 (2016).
10. In simple terms, geofencing and geotargeting allow marketers to direct advertisements to consumers in a particular geographic area (such as a store, office, or hospital) through mobile phone and computer GPS services and other digital footprints.
11. See Eric Goldman & Angel Reyes III, Regulation of Lawyers’ Use of Competitive Keyword Advertising, 2016 Ill. L. Rev. 103 (2016), https://tinyurl.com/s7ghg5l.