Last December, I had the privilege of speaking to the Dayton Intellectual Property Law Association about the role social media plays in the day-to-day work of attorneys. Although my discussion was tailored to intellectual property attorneys, the lessons are valuable for all members of the legal profession. Social media is part of a new and emerging technological tool (a tool that has come under great scrutiny in workplaces, the legislature, and privacy advocates). In the 1990s, an attorney could spend days crafting a message that would be seen by a few thousand people. Now, that same attorney can reach a global audience in seconds. Although the technology has changes, by and large, the ethical rules surrounding attorney use of advertising tools have remained the same. Below, I outline the top five takeaways from my presentation.
1. Social Media is Not Just Having a Facebook Account
Far too often I hear people (not just attorneys) say "well, I am not on Facebook, so why should I worry about social media? It does not concern me." Wrong. Social media is more than just having a Facebook account or sending out the occasional tweet. Social media is the means by which someone sends a message to a potentially global audience. As attorneys, we draft hundreds of letters, motions, and briefs. In the 1980s and 90s the odds of any legal writing making its way into the media were remote. But now, with high speed internet and sophisticated search engines, anything an attorney writes has the potential to be read, and ridiculed, by a global audience.
Take for example a 2012 cease and desist letter written by an attorney for Jack Daniel's Whiskey. A Louisville-based author used a design similar to Jack Daniel's famous black and white label for the cover of his latest novel. In drafting a cease and desist letter to the author, counsel for Jack Daniel's chose to use a kinder and gentler tone:
"We are certainly flattered by your affection for the brand, but while we appreciate the pop culture appeal of Jack Daniel's we also have to be diligent to ensure that Jack Daniel's trademarks are used correctly…. As an author you can certainly understand our position and the need to contact you. You may even have run into similar problems with your own intellectual property. In order to resolve this matter, because you are both a Louisville 'neighbor' and a fan of the brand, we simply request that you change the cover design when the book is re-printed."
This exaggeratedly polite cease and desist letter earned the attention of Forbes, Business Insider, and other publications. Quickly, casual observers on Facebook and Twitter had read the letter, and this news story became a world-wide trending topic. The counsel for Jack Daniel's, without posting a tweet or a share, became a social media hot topic. It can happen to anyone.
Attorneys should educate themselves on social media for a second reason. Whether an attorney actively engages in social media or not, the Model Rules of Professional Conduct prohibit attorneys from ignoring nascent advances in technology: "…to maintain the requisite knowledge and skill, a lawyer should keep abreast of the benefits and risks associated with relevant technology." Model Rule of Professional Conduct 1.1, comment 8 (2013). Because social media has become such an important part of internet communication and legal proceedings, attorneys actually have an ethical duty to at least understand the medium, regardless of whether the attorney maintains a social media account or not.
2. Simply Posting on Social Media Can be Legal Advertising
Attorneys are allowed to have their own social media accounts, including Facebook, Twitter, and LinkedIn. But in many jurisdictions, lawyer and law firm social media profiles are deemed to be advertisements just like any billboard or late night television commercial. Both the Florida Supreme Court and the California State Bar have determined that lawyer advertising rules apply to social media posts depending upon the nature of the posted statement or comment. Not every social media post will be considered advertising. Under Model Rule 7.2, a communication is an advertisement when it "involves an active quest for clients." But, including information such as the legal services you provide, contact information, or legal experience could implicate the advertising rules. The general rule: the more information you put on social media about your legal services, the more likely that your social media account will be seen as an advertisement. If an attorney has any doubts whether her social media site is advertising, then she should include a disclaimer such as "ADVERTISING MATERIAL ONLY – NOT INTENDED TO CREATE ATTORNEY-CLIENT RELATIONSHIP."
3. Do Not Claim to be Something You're Not
Because social media profiles can be considered advertisements, lawyers should be vigilant in adhering to the Model Rules of Professional Conduct relating to advertisements. In particular, "a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services" (Model Rule of Professional Conduct 7.1) and a lawyer shall not represent herself as a specialist or expert in a field of law, subject to limited exceptions (Model Rule of Professional Conduct 7.4).
Because of how fast social media can travel, attorneys should be careful to ensure that a post is not misleading or create false expectations. For example, an attorney may post vaguely about legal successes, but that attorney should not specifically describe an award of damages or boast about repeat successes because readers might be misled into thinking that the attorney can reach similar results in all matters.
Although social media is often a haven for people to stretch the truth about experiences and qualifications, attorneys should not fall into that trap. Pursuant to Model Rule 7.4, an attorney may not post information that implies he is certified in a specialty unless he (a) has been admitted to the Patent Bar, (b) is engaged in Admiralty practice, or (c) , is (i) certified as a specialist by an organization that has been accredited by the ABA, and (ii) the name of the certifying organization is clearly identified in the communication." Therefore, attorneys should avoid profile descriptions or posts that claim a specialization or expertise in any field of law unless the attorney meets the requirements under Model Rule 7.4.
LinkedIn provides a unique challenge. Lawyers make up approximately 777,000 of LinkedIn's 10 million users, and every LinkedIn account invites users to "Add your areas of expertise" or "Add a few skills you have" to the user's profile. Although LinkedIn removed a "specialties" section from profiles in 2013, because of the challenge it posed to lawyers attempting to comply with ethical rules, casual observers may still conflate the "skills and endorsements" section with specialization or expertise. Therefore, lawyers should be careful when adding skills or accepting endorsements to make sure that observers would not conclude that the attorney is claiming specialization. Avoid posting skills or accepting endorsements for a particular field of law, but instead highlight more general skills like "writing" or "communication" that highlight your abilities without appearing to be an expert in a given legal area.
4. Make Connections Carefully
Making connections and "friends" on social media can be a great way to expand your network. But if you connect with, tweet at, or otherwise communicate with the wrong person, then you might find yourself under review by a disciplinary committee.
First, Model Rule 7.3 guides lawyers on how to send messages to recipients that have not specifically opted in to receive them. In short, these communications must not only comply with all requirements of verifiability and veracity, but the communication must also be specifically labeled "Advertising Material" and cannot be delivered as a real time contact. Traditionally, "real time" contact has meant face-to-face or over the phone contact. This kind of contact is prohibited because the recipient of an attorney's communication may have difficulty resisting persuasive techniques. But many states have begun to characterize chat rooms and instant messaging as "real time" contact akin to a phone call. Therefore, attorneys should avoid using direct messages on Twitter or Facebook Instant Messenger to contact prospective clients.
Second, during litigation, Rule 4.2 requires that contact with an opposing party go through counsel. Therefore, sending a friend request, a request to follow, or an invitation to connect with a represented opposing party is prohibited. If a party is not represented, lawyers generally may request to connect to the privately-held social media account so long as the attorney does not engage in deceptive practices to do so.
Finally, during trial, attorneys are prohibited from directly communicating with jurors. Obviously, attorneys should not attempt to friend, tweet at, or connect with jurors during a trial. Even if the juror makes first contact and attempts to connect, the attorney should simply ignore the request or bring the attempted communication to the judge's attention. But a second consideration exists: some sites like LinkedIn have a feature that permits users to see the names of anyone who has viewed that user's account. Therefore, attorneys should avoid using social media sites to research jurors when doing so could reveal to the juror that the attorney is attempting research them.
5. Think Before You Tweet
Social media is here to stay. Savvy attorneys are smart to utilize the internet, blogs, and social media to market their brand and services. But before pressing "Send" or "Tweet" on any social media posts, attorneys must take the time to consider their obligations under the Rules of Professional Conduct. Until the laws and state bar associations catch up to evolving technology, attorneys must remember that the same old rules apply for everyone.