The internet and social media is making it harder for lawyers to know what's OK in presenting their services to the public.
Lawyers are advised to look to ethics rules to take precautions in light of the uncertainty. However, the conundrum is there is even uncertainty in the rules themselves.
Rules, Rules, Rules
Attorney ethics are governed by rules of professional conduct promulgated by the Supreme Court in the state in which an attorney is authorized to practice.
The Model Rules of Professional Conduct ("MPC") are issued by the American Bar Association, a voluntary nongovernmental bar association without lawmaking power. The Model Rules themselves have been adopted, in whole or in part, as the professional standards of conduct by the judiciaries or integrated bar associations of 49 U.S. states (California adopts is own rules while New York has as significantly modified version of the MPC).
The section of the MPC most states use to determine what is and what is not acceptable by attorneys is entitled "Information About Legal Services" which includes guidelines on such conduct such as communication concerning a lawyer's services, advertising, solicitation of clients, communication about specialization and other information.
The 3 most perplexing sections on Information About Legal Services in the New Media Age are:
Where lawyers get confused most in the internet and social media age is solicitation of clients.
Solicitation is a communication directly targeting a specific individual and offers to provide them legal services. Lawyers are prohibited from soliciting clients in person, over the phone (cold calling), or in "real-time electronic contact".
The term "real-time electronic contact" is a broad term which is very unclear as to what behavior is prohibited or admissable.
Comments to the Model Rules reasoning behind the ethical concerns for direct client solicitation are:
the person "who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self‑interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over‑reaching."
The objective of the rule is to ensure potential clients evaluate all potential options for obtaining an attorney and the attorney soliciting the client is properly vetted before he is hired.
Emails are not included as real time electronic contact. It has been debated whether Facebook chats, response to non-lawyer general Facebook status updates discussing the need for legal services, and mentioning someone on Twitter qualify as "real-time electronic contact".
In addition, the rules give an exception for solicitation to those the lawyer has familial, close personal, or prior professional relationship with the lawyer. In the world of Facebook, Twitter, and LinkedIn where people blind friend, follow, or become connections with one another yet engage in numerous discussions and interactions online, what is considered "close personal" or "prior professional" relationship is also murky.
- "Tracy Who?" is what a potential client might ask, even though you're "connected" to them. (LinkedIn Screenshot)
Becoming a LinkedIn connection of someone requires a user to admit he has a personal or professional connection with someone. A user on Twitter has the option of following someone back or not, as well as blocking them. Facebook has the option of friending someone or not, blocking them, as well as merely allowing the person to "subscribe to them where a user can limit the information he conveys to his "subscribers".
In order to navigate the minefield of this area where states may have yet to catch up with the land mines of social media, attorneys should not make the first contact with a potential client on social media, even if that person posts a status update or tweet looking for a lawyer. Attorneys should allow a mutual contact or that person to contact them, unless attorneys personally know the potential client very well outside of social media.
Another area where lawyers get confused most in the internet and social media age is advertising.
Advertising consists of of lawyers addressing the public to make known their services. Attorneys are allowed to advertise to the public via commercials, billboards, websites, and well as through letters and emails directly to potential clients. Also included is "public media".
When using email, Facebook or LinkedIn to reach advertise to new clients, using social media should operate like sending a letter. It should state the name, address, and phone number for the lawyer, and well as state communication is advertisement material.
On Twitter, Instagram, Facebook chats, or status updates involve more instantaneous communication, it is not advisable for attorneys to "advertise" or be seen as soliciting a client in "real-time contact". Although some individuals take longer to contact and can generally ignore a message, just like a phone conversation or a knock on the door, doing so may be cumbersome an invitation for some form of coercion. Attorneys are strongly advised to stay away from this method of "advertising".
Social media invites most laypersons to embellish on their lives, but attorneys should be very wary of doing the same about their practices. Attorneys should not state untruths of their record on social media or declare themselves a "specialists" or "certified" when it is not the case or running afoul of the Model Rules on being misleading.
When it comes to social media and the internet, being social can put attorneys in a web of trouble if they do not take the proper steps.
With a healthy understanding of the rules, lawyers can take advantage of new advances with robust strategies to mine for new clients while protecting themselves and their practices.
Exavier B. Pope, Esq. is an entertainment and sports attorney, media personality, syndicated writer, Fortune 500 speaker and peak performance strategist, author, philanthropist, and sports business and law blogger for ChicagoNow. All opinions expressed are those solely of Mr. Pope.
(c) 2012, Exavier Pope
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