2012 06-15 sbot using modern marketing tools in compliance with disciplinary rules

Richard C. Price, Fort WorthD. Todd Smith, AustinPeter S. Vogel, Dallas

Using Modern Marketing Tools in

Compliance with Disciplinary Rules

Social Media Platforms for Lawyers

Advertising Rules: Part VII of the TDRPC

• Purpose is to protect the public from false, misleading, and deceptive communications

• Rules specify conduct for attorneys who promote services to public

• Violations subject lawyers to discipline• New: Violations may also subject lawyers to

liability under civil barratry statute

Why Market Via the Internet?

• As of 12/2011, the lawyer/resident ratio in Texas was 1/280

• We have 86,400 active lawyers and add 3,000 new lawyers per year

• Lawyering is becoming more of a commodity• More competition for less work requires more

creative and effective marketing• The Internet is a cheap and effective way to

reach large numbers of potential clients

• Establish firm brand and market reach

• Share expertise and news

• Increase firm visibility and traffic

• Create goodwill by pointing to helpful resources

• Can show a little of yourself and help potential clients get to “know” you

Why Use Social Media?

• Rule 7.02 prohibits false, misleading, or deceptive communications– Material misrepresentations or omissions– Guaranteeing results or creating unjustified

expectations

• Rules 7.03 & 7.05 govern prohibited solicitations (including digital) and payments

• Rule 7.04 & 7.07 cover advertisements and filing requirements

And Then There Are the Advertising Rules

• Filing requirement applies when:– electronic communication addresses the

qualifications or the services of lawyer or firm– not exempt under DR 7.07(e)– generally available to the public

• Communicating attorney must file the communication with the ARC before or concurrently with first dissemination

Advertising Rules and Social Media

• In 2005, SCOTX expressly applied the Advertising Rules to electronic or digital communications

• Blogging took root shortly thereafter, followed by Facebook, Twitter, and others

• No one knew for sure how the ARs would apply to social media

• Issue has reached new importance, since new statute treats violation of ARs as barratry

Evolution of Ethical Concerns

• In 2010, the Advertising Review Committee released revised Interpretive Comment 17

• Purpose was to address issues with different kinds of Internet-based advertisements, including blogs, social media, and web-based display ads

• Focus is whether they are advertisements subject to filing requirements, but helps guide behavior on social media for all purposes

The ARC’s Take: New Comment 17

“Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings to not meet the definition of an advertisement subject to the filing requirements.”

IC 17 on Blogs and Status Updates

“Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.”

IC 17 on Landing Pages

• Electronic communications like social media posts are advertisements in the public media subject to the filing requirements of DR 7.07 unless exempt

• New Pitfall: Gov’t Code § 82.065 now provides that solicitation conduct violating disciplinary rules constitutes barratry

• Violate the DRs in social media = exposing oneself to barratry under new statute

• Fee forfeiture, damages, and monetary penalty are among remedies available—and they are not limited to actual clients

What Does This Mean?

• Exercise caution about providing information beyond what is exempt under DR 7.07(e)– “Tombstone” information– Areas of practice– Dates of admission– Technical and professional licenses– Foreign language ability– Prepaid group legal service plans– Acceptance of credit cards– Initial consultation fee or fee schedule– Sponsorship of charitable, civic, or community program or

event or PSA• None of this needs to go before Ad Review

Where Is the Line?

• But the ARC says filing is not required for blogs or status updates that are merely educational or informative in nature

• The most common types of legal-related blog and social-media posts do not trigger filing requirements or related rules, as long as the content would not otherwise be considered an advertisement and is not false or misleading

• Again, exercising good judgment is key

Where Is the Line?

Richard C. Price, Fort WorthD. Todd Smith, AustinPeter S. Vogel, Dallas

Using Modern Marketing Tools in

Compliance with Disciplinary Rules