How to Keep Clients (and Not Lose Friends): An Introduction to the Ethics of Social Media

By Elizabeth LewisLaw Office of E.C. Lewis, P.C.

What is social media?

Social media is the use of Internet and web-based applications to communicate to one or more individuals.

Social media can be considered personal communication or broadcasting depending on the number of people that the message reaches.

Personal Communication

Instant messaging Typically between two people

Personal websites Personal blog

Text messaging Typically between two people

Broadcast Media

Broadcast media is meant to be read by more than just friends and family: Professional communications Special interest sites

Professional Communication

Company website LinkedIn Legal sites (Lawyers.com,

Avvo.com, etc) Facebook fanpages

Personal/Professional Sites

Facebook Typically your profile is personal Typically your fanpage is business or

special interest Twitter Blogging

Special Interest Sites

Sites meant for individuals all interested in same thing to communicate Music - Last.fm Photography - Picasa Encyclopedia - Wikipedia Product reviews - Epinions.com Genealogy – Ancestry.com

Why does ethics play a role in using social media?

Many forms of social media can be seen as advertising.

Overriding rule - Colo. RPC 8.4 states it is misconduct to “engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer’s fitness to practice law”.

Can I Advertise Online?

Yes – Colo. RPC 7.2 states “Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.”

Colo. RPC 7.1. Communications Concerning a Lawyer’s Services

A lawyer cannot: make false or misleading

communication about his services. send unsolicited communications

concerning his services. send mail that falsely implies a

degree of importance.

Colo. RPC 7.1. Communications Concerning a Lawyer’s Services (Cont.)

A lawyer: must tell clients that they may be

liable for costs. can tell clients that initial consultation

is free. cannot use words like “cut-rate”,

“lowest” and “cheap” to characterize his services.

Colo. RPC 7.1. Communications Concerning a Lawyer’s Services (Cont.)

A lawyer cannot: state anything about his abilities unless

he can factually substantiate those claims.

state unsubstantiated characterizations of past results.

permit, encourage, or assist in a third party to make communications on behalf of him that violate the ethical rules.

Colo. RPC 7.1. Communications Concerning a Lawyer’s Services (Cont.)

A lawyer cannot advertise for clients in a field of

practice where he is not competent. aggregate the experience of everyone

in his firm if it is misleading to potential clients.

Colo. RPC 7.2. Advertising

A lawyer must: make sure that all communication

contains the name and office address of at least one lawyer or law firm responsible for its content.

make sure that all solicitation is done by the prospective client and not the other way around.

Colo. RPC 7.2. Advertising (Cont.) A lawyer can include information such as:

his name or firm name his address and telephone number the kinds of services he will undertake the basis on which his fees are determined his foreign language ability names of references other information that might invite the

attention of those seeking legal assistance

Colo. RPC 7.2. Advertising (Cont.)

Lawyers can: pay for advertising and

communications including the costs of on-line directory listings, domain-name registrations, and banner ads.

pay marketing services and website designers.

Colo. RPC 7.3. Direct Contact with Prospective Clients Lawyers cannot:

use real-time electronic contact to solicit professional employment unless the prospective client has made known to the lawyer a desire to be contacted.

use electronic means to solicit professional employment from a prospective client if the lawyer knows or reasonably should know that the person is already represented by a lawyer.

Colo. RPC 7.3. Direct Contact with Prospective Clients (Cont.)

A lawyer must: include the words “Advertising Material”

at the beginning and ending of any electronic communication unless the recipient is family or a prior professional contact.

must keep a copy of each communication for four years following the sending of the communication.

cannot contact someone repeatedly if he does not receive a response.

Colo. RPC 7.4. Communication of Fields of Practice A lawyer:

may communicate the fact that he does or does not practice in particular fields of law or only practices in certain fields

may not state or imply that he specializes in a particular field of law unless he has been certified as a specialist by an organization approved by Colorado or the ABA.

must state that “Colorado does not certify lawyers as specialists in any field.” if he uses the word specializes anywhere in his advertisements.

Colo. RPC 7.5. Firm Names and Letterheads

A lawyer cannot use a firm name, letterhead

or other professional designation that violates Rule 7.1.

can use a trade name.* can have a distinctive website

address.*

*must comply with other rules and states if applicable

Other Rules Colo. RPC 1.6. Confidentiality of

Information: A lawyer cannot reveal information relating to the representation of a client unless the client gives informed consent.

Colo. RPC 1.18. Duties to Prospective Client: Anyone who discusses legal issues with a lawyer is a prospective client unless unreasonable expectations.

Colo. RPC 3.3. Candor Toward the Tribunal: You cannot make false statements to tribunal.

Other Rules (cont.) Colo. RPC 3.6. Trial Publicity: You cannot

make statements before or during a case if you know there is a substantial likelihood of materially prejudicing the outcome.

Colo. RPC 4.1. Truthfulness in Statements to Others: You cannot makes false statements to third parties (or have other people make them on your behalf).

Real-life examples

Philadelphia Bar Facebook case Attorney used misleading tactics to

gain access to someone’s Facebook page.

Philadelphia stated that it was unethical as the case involved lying to a third party.

Pay-per-click

CT and MD pay-per-click cases Question as to whether you can pay

referral fees to websites that you have exclusivity contracts with is still up for debate.

Bar admissions

FL Bar Admission Florida is currently on a case-by-case

basis requesting social media site information from those taking FL bar – including to determine whether unauthorized practice of law occurred.

Blogging Blogging (Illinois)

IL suspended license of PD who used personally identifying information about clients and bad-mouthed judges in blogs.

Blogging (CA) CA suspended attorney who posted updates

about case he was a juror on as judge said jurors could not speak about case during trial.

Blogging (FL) FL suspended attorney who posted comments

about judge he practiced in front of.

Facebook friends

Friending judges FL has stated that judges cannot

friend anyone that may practice in front of them

NY, SC, TX allow it though as they do not see it as any different than socializing with judges outside of court

Ratings websites Questions about ratings

SC decision SC issued opinion on site (suspect is AVVO)

that said if you claim site you are responsible for ratings posted on it by users.

AVVO response AVVO responded that the recommendations

provided the public with information necessary to choose an attorney.

Tell the truth

TX Facebook case Attorney asked for continuance

saying father had died. Judge was friend with her on Facebook and saw pictures of her partying and going out.

Final Rules Colo. RPC 4.2. Communication with Person

Represented by Counsel: You cannot communicate with someone represented by an attorney.

Colo. RPC 4.3. Dealing with Unrepresented Person: You must not state or imply you are disinterested and cannot offer legal advice to an unrepresented party.

Colo. RPC 5.1. Responsibilities of a Partner or Supervisory Lawyer: Partners have responsibility over the lawyers conduct underneath them.

Final Rules Colo. RPC 5.2. Responsibilities of a

Subordinate Lawyer: A lawyer is bound by the Rules even if a supervisory lawyer tells him to act in a way that violates the Rules.

Colo. RPC 5.3. Responsibilities Regarding Nonlawyer Assistants: A lawyer is responsible for his assistants’ actions.

Colo. RPC 2.1. Advisor: A lawyer can render candid advice and may refer not only to law but to other considerations such as moral, economic, social, and political factors.

Final Rules Colo. RPC 3.4. Fairness to Opposing Party and

Counsel: A lawyer cannot obstruct another party’s access to evidence or alter, destroy, or conceal evidence.

Colo. RPC 3.5. Impartiality and Decorum of the Tribunal: A lawyer shall not seek to influence a judge, juror, prospective juror, or other official or communicate ex parte with such a person.

Colo. RPC 3.9. Advocate in Nonadjudicative Proceedings: A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding may engage in ex parte communications.

Final Rules

Colo. RPC 4.4. Respect for Rights of Third Persons: A lawyer must respect the rights of third persons.

Colo. RPC 8.2. Judicial and Legal Officials: There are special rules involving judges and legal officials.

Colo. RPC 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law: A lawyer cannot practice law in a jurisdiction without a license to practice law issued by that jurisdiction.

Final thoughts Don’t say anything on social media sites

that you wouldn’t say face-to-face. Be honest. Give disclaimers. If in doubt, ask questions. Follow the same rules for online

communication that you would for offline communications.

Use common sense.