Social media advertising and attorneys - words to the wise

Richard A. Dollinger, and Cristian Cruzado
BridgeTower Media Newswires

There are two two-word warnings for any attorney seeking to exploit social media to help build their practice.

Watch out and be careful.

The ethical rules for attorney advertising — long based primarily on direct client solicitation or print advertising — are a long way from catching up to the 140-character — Twitter — and Facebook social media world. But while these rules are in their infancy, attorneys and the Bar may struggle to balance both new and old rules with the new technology.

Attorneys are turning to social media at a “staggering rate,” but their use lags behind the public’s. A 2017 ABA Legal Technology Services Report indicated 81 percent of attorneys had some social media presence, most of it on LinkedIn, and more than a third were on Facebook.

Commentators acknowledge that social media presence “accelerates relationships and a lawyer’s word-of-mouth reputation.” Failure to have a social media presence means lawyers could end up “invisible and less credible and missing out on emerging sources of business.”

One commentator bluntly concluded:

“Writing off the influence of social media will leave many, if not all, hold out attorneys wondering where all their business and billable hours went.”

— Ellis, “140 Characters or Less: An Experiment in Legal Research,” 42 INT’L LEGAL INFO., 303 (2014).

Blogging, another social media innovation, has gained a huge following among law firms. A recent study suggested blogging by attorneys resulted in a 50 percent increase in client retention.
But the use of all forms of social media present challenges under the attorney ethics rules. First, these attorney postings, blogging or other social media entries, in all likelihood constitute “communications” that are subject to attorney ethical rules. See MODEL RULES OF PROF’L CONDUCT R. 7.1 (AM. BAR. ASS’N 2018).

Other immediate concerns arise when attorneys answer legal questions on social media. The attorney may never be able to retract or modify the answer, as it is passed onto other readers in similar — but not exactly comparable — fact situations. The answer may waft into other states and that raises questions about whether the attorney is practicing law in another state. The use of a sufficient disclaimer — as long as the 140-character message — may also be necessary when any legal answer is given on social media.

The top of the list of social media “no-nos” relates to attorneys using the platforms to comment on their current cases before the courts. In Louisiana, a disgruntled attorney passed information about pending litigation and a petition to the general public asking judges to change their opinions in a case. She was disbarred. In the same state, a federal prosecutor posted critical comments about lawyers, judges and defendants under a pseudonym for years. Unmasked, his claim that post-traumatic stress disorder (PTSD) caused his postings failed to save him from disbarment.

In Florida, an attorney posted derogatory comments about a judge in a pending case but paid the lesser — but still costly — price of a suspension. A similar suspension occurred when an attorney blogged about a case in which she was counsel and critiqued the judge’s decisions.

In Pennsylvania, lawyers, seeking to celebrate a $27.8 million verdict against a Germany-based drug manufacturer, posted a photo on their website of the courtroom using the hashtag “#killinnazis.” The defense sought to overturn the verdict claiming the hashtag and closing arguments pointed to plaintiffs’ attempt to link the defendants to Nazi Germany. The trial judge said the “#killinnazis” hashtag on the court photo was “beneath the dignity of the legal profession.” The judge revoked the lawyer’s pro hoc vice status and ordered another lawyer to pay $2,500 and perform 25 hours of community service for posting a courtroom photo with the judge on the bench to Instagram. The judge overturned the verdict on other grounds, but to suggest he was not thrilled with the attorney’s use of social media would seem an understatement.

Other issues may confront even the savvy social media attorney. Numerous courts have held attorneys liable for all posts on social media, even if the attorney, while simply acting as the host, did not make the actual posting. In a New Jersey case, the Court suggested that an attorney had an obligation to “frequently” monitor postings on the attorney’s website to determine if posts by others were false or deceptive or endorsements for areas of practice outside the lawyer’s skill set. The Association of the Bar of the City of New York has opined that if an attorney finds that materials posted by others violate ethical rules then the attorney must remove or hide the content or ask the “poster” to remove it.

The usual puffery of attorneys celebrating their successes may also run afoul of the advertising rules. A fine ethical line may differentiate between the merely celebratory post — “Case finally over.

Unanimous verdict. Celebrating tonight.” — and the solicitation — “Another great victory in court today. My client is delighted. Who wants to be next?” The former may be unobjectionable; the later may run afoul of the advertising and solicitation rules.

Use of superlatives on websites — either from the mouth of the attorney or even others — may also pose ethical traps for attorneys. Use of the phrase “super lawyer” or the language “best settlement ever for an auto accident” may require extensive disclaimers, even if the language is posted by a client or other individual outside the attorney’s control. Similarly, use of a chatroom to solicit business also runs afoul of ethical rules.

Friending — adding someone to your list of friends — may also invite some risk of ethical violations. The New York City Bar Association held that LinkedIn’s capacity to notify members when someone has viewed their profile could constitute a “communication” that invokes ethical rules regarding the content of any response. The issues of whether attorneys or their agents may “friend” other litigants or even unrepresented parties — prior to commencing litigation — remain troubling quandaries on the social media horizon, even New York has not required attorneys to disclose reasons for a friend request, even to an unrepresented litigant or potential litigant. Similarly, the process known as catfishing — assuming a false identity to gain information from another attorney or litigant — raises ethical challenges.

Finally, another ethical trap may emerge when an adverse post appears on an attorney’s website, critical of the attorney’s work in a particular matter. The temptation to divulge confidential information to defend the attorney’s work will create further risks. A Pennsylvania Bar Association ethics opinion held that “[w]hile there are certain circumstances that would allow a lawyer to reveal confidential client information, a negative online client review is not a circumstance that invokes the self-defense exception.” Attorneys may only be able to respond, via social media, that the post does not represent a fair and accurate portrayal of the attorney’s work.

In the vortex of change that drives social media, “best practices” for attorney use of social media will continue to evolve to keep pace with this communication revolution.

But, the advice remains simple: be careful and watch out.

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Richard A. Dollinger is a member of the Court of Claims and acting Supreme Court Justice in Rochester. Cristian Cruzado is a second-year law student at the University of Buffalo Law School, interning in the 7th Judicial District this summer. This article is adopted from a CLE presentation given in June at the Monroe County Bar Association. A video of the CLE is available through the MCBA.