Ethics of Websites and Social Media
Websites and social media are essential marketing tools for today’s law practice. But unlike most people on the internet, lawyers have to be careful that their online marketing activities don’t violate any state ethics rules.
It’s not always easy. The internet changes at a lightning pace, and the evolution of legal ethics is slothlike by comparison. Yet under the ABA’s Model Rules of Professional Responsibility and many state ethics rules, lawyers can’t just stick their heads in the sand: they are now required to keep up with “the benefits and risks associated with relevant technology.”
Here are some of the main ethics issues that lawyers should be aware of as they establish an online presence.
Forming an attorney-client relationship. As a lawyer, you know you aren’t creating an attorney-client relationship when you answer a forum question or respond to a comment on your blog. Yet, the people on the receiving end may not see it that way. Even more scary, a potential client may interpret general information on your website or blog as applying specifically to them. The ABA recommends that lawyers include online disclaimers in a conspicuous place. These should advise readers that no attorney client relationship has been created and no legal advice has been given. In addition, make sure your online conduct is consistent with your disclaimer – don’t send communications that imply a relationship and then try to disclaim it with hard-to-find fine print on your website.
Unauthorized practice of law. Lawyers are not permitted to practice law in any jurisdiction in which they are not licensed. But if you answer out of state legal questions online, that could be construed as practicing law and open yourself up to an ethics violation in another state. Be sure to add a disclaimer noting that you are not licensed as a lawyer in that state.
Attorney advertising rules. Several states have issued ethics opinions holding that lawyers’ websites and social media profiles are attorney advertising and therefore subject to state ethics rules that regulate advertising. For example, most states have some sort of rule that bars lawyers from initiating client solicitations without an appropriate disclaimer. Lawyer websites and social media posts can violate these rules by asking potential clients to call or email the law firm. If your website asks people to become clients, be sure you include the proper disclaimer for your state. On social media, a good rule of thumb is to avoid commercial speech that advertises your services. Stick to informative posts, and for good measure include a link to your profile page with a disclaimer.
Social media evidence. Evidence from social media, usually Facebook, can be a deciding factor at trial. But the means of gathering that evidence must be ethical. On Facebook, for example, privacy settings may not allow access to a user’s post unless the user adds you as a friend. Sending friend requests for evidence-gathering purposes may violate state ethics rules, including rules that prohibit direct communications with parties who are represented by counsel. Make sure you know and follow the rules in your state.
Confidentiality. The attorney-client privilege bars you from disclosing client communications without the client’s consent. But lawyers sometimes inadvertently violate the rule in their social media postings. A good rule of thumb is to avoid talking about clients or former clients on social media.
Specialties. Many states have programs in which lawyers can, through experience, education and testing, be certified as specialists in certain areas of the law. Accordingly, state ethics rules may bar lawyers from using the term “specialist” in websites and social media unless they are certified specialists in that area of law. Use other words like “focuses on” or “experienced in” instead. When creating social media profiles, be sure that the social media site isn’t automatically calling you a “specialist” or “expert” in the practice areas you list.
Testimonials and Endorsements. Some state ethics rules prohibit or restrict lawyers’ use of testimonials or endorsements. This can be a problem on social networking sites like LinkedIn that make heavy use of endorsements, or with lawyer review sites that have a ratings system. Make sure you know and follow your state’s guidelines on this issue.