social media and ethics rules: dos and don'ts

Social Media and Ethics Rules:Dos and Don’ts

Sara Foskitt

(@foskitt & @FoskittRealty)

D. Todd Smith

(@dtoddsmith & @SmithLawGroup)

Michelle Cheng

(@foodiethenew40 & @AustinTrialLaw)

Overview

• Focus is on social media in context of advertising rules

• Why should lawyers use social media to promote their practices?

• How can it be done ethically?

Am I Likely to Benefit?

• Does your law firm have an internet presence? How else do clients find you?

• Would you like to establish a niche or a “personal brand”?

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

Advertising Rules: Part VII of the TDRPC

• 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 more than 86,000 active lawyers and add 3,000 new lawyers per year

• Lawyering is becoming more of a commodity

Why Market Via the Internet?

• 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 personal/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?

Social Media Platforms for Lawyers

• Blogs• Twitter• Facebook• LinkedIn• Google Plus

• YouTube/Vimeo• Avvo• JD Supra

• Texas Bar Circle

• Lawyers.com• Legal OnRamp• Martindale-Hubbell• LawLink• Justia• Yelp• Foursquare• Pinterest

A few examples…

Facebook – Personal Page or Business Page?

Google+

Google+ - Personal Page vs.Business Page?

Examples of Social Media’s Reach

Examples of Social Media’s Reach

Thanks, Jessie Tilton!

• More than 900 million active Facebook users – over half log on to FB on any given day.

• 20% of all internet users use Twitter or another service to share or view updates

• Business use: Twitter up 250%, Facebook up 192% since Spring 2009

• No fad—a fundamental shift in communication

The Power of Social Media

• Find your niche and focus on that area• Don’t sell• Don’t over-post• The more positive you are, the more people

will want to do business with you• Be careful who you add as your friend• Use common sense

Social Media Etiquette

What You Post May Hurt You

Source: Forbes

What You Post May Hurt You

Source: Forbes

• 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

The ARC’s Take: New Comment 17

• 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

What Does This Mean?

• 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?

• “Just published an article on wage and hour breaks. Let me know if you would like a copy”

Merely states information about an article the author published. This is OK.

• “Case finally over. Unanimous verdict! Celebrating tonight.”

Factual, so probably OK.

Do These Updates Pass Muster Under the Ethical Rules?

• “Another great victory in court today! My client is delighted. Who wants to be next?”

“My client is delighted” could be a client testimonial.

“Who wants to be next” is not exempt and arguably solicits the lawyer’s services.

Do These Updates Pass Muster Under the Ethical Rules?

• “Won a million dollar verdict. Tell your friends to check out my website.”

Construed together, this could be read as soliciting employment.

• “Won another personal injury case. Call me for a free consultation.”

Offer for free consultation may be read as soliciting employment.

Do These Updates Pass Muster Under the Ethical Rules?

LinkedIn Example of Issues

Caution: 7.02(4) prohibits comparisons to other lawyer’s services, unless substantiated by verifiable objective data. This is probably ok.

Gene Major, director of the State Bar of Texas Attorney Compliance Division, …says he thinks LinkedIn endorsements comply with advertising rules, because there's nothing "false, misleading or deceptive" about another person clicking a button to indicate a lawyer is competent in an area of law.”

• DR 7.03(a)

violations?

Not unethical. Good marketing, until she says “hire me.”

Could be breaching confidentiality?

Social Media and Ethics Rules:Dos and Don’ts

Sara Foskitt

(@foskitt & @FoskittRealty)

D. Todd Smith

(@dtoddsmith & @SmithLawGroup)

Michelle Cheng

(@foodiethenew40 & @AustinTrialLaw)