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.
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THE ETHICAL IMPLICATIONS OF SOCIAL MEDIA Brian C. Focht Stiles
Byrum & Horne, LLP www.thecyberadvocate.com
THE ETHICS OF SOCIAL MEDIA PART 2: MARKETING YOUR PRACTICE ON
SOCIAL MEDIA
MARKETING YOUR FIRM VIA SOCIAL MEDIA Remember: This. Is.
Advertising.
MARKETING YOUR FIRM VIA SOCIAL MEDIA NC RULES OF PROFESSIONAL
CONDUCT Advertising: 7.1 Communications Concerning Lawyers Services
7.2 Advertising 7.3 Direct Contact with Potential Clients 7.4
Communication of Fields of Practice and Specialization
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
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 its unethical in person, its unethical on
Social Media MUST include all necessary facts 2000 FEO 1
Comparisons with other attorneys require factual basis
MARKETING YOUR FIRM VIA SOCIAL MEDIA Related Issues: Marketing
Videos
MARKETING YOUR FIRM VIA SOCIAL MEDIA Related Issues: Marketing
Videos
MARKETING YOUR FIRM VIA SOCIAL MEDIA Related Issues: Marketing
Videos Ghostwriting
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
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 dont know the
rules. Make sure their endorsement is in context, or it might be
considered misleading! 2012 Formal Ethics Opinion 8
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
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. Dont recommend a
lawyer on quid pro quo basis Dont recommend someone you dont know
No Astroturfing
MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Direct
messaging prospective clients Applicable Rule(s): 7.3 To Comply:
Dont do on Social Media what you couldnt do in person If theyre
already a friend or connection, its likely that direct solicitation
would be permitted HAS NOT BEEN ADDRESSED IN NC!
MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Direct
messaging prospective clients Applicable Rule(s): 7.3 To Comply:
Dont do on Social Media what you couldnt do in person Although not
yet addressed, Tweeting your availability to someone just in an
accident is probably solicitation
MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Direct
messaging prospective clients Applicable Rule(s): 7.3 To Comply:
Dont do on Social Media what you couldnt do in person Hypothetical:
Youre 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?
MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Listing skills,
experience, practice areas Applicable Rule(s): 7.4 To Comply: Dont
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
MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Listing skills,
experience, practice areas Applicable Rule(s): 7.4 To Comply: Dont
use specialize; be very conscious of how your profile can be read
If youre 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
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
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 wouldnt 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! Theyre liars who just
want your money.
MARKETING YOUR FIRM VIA SOCIAL MEDIA Heres 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.
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
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 youre 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 lawyers
representation. (emphasis added)
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
youre frustrated/upset!
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 youre
responsible for your staff too!
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 doesnt override
your actions Additional Guidance: 2011 FEO 8
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
THE ETHICAL IMPLICATIONS OF SOCIAL MEDIA Brian C. Focht Stiles,
Byrum & Horne, LLP [email protected]
www.thecyberadvocate.com