Ethics for Attorneys in the Age of Social Media
Social media has transformed every aspect of the modern legal landscape. Previously reliant on word of mouth, clients now follow lawyers on Facebook, seek background information on LinkedIn, and watch law firm videos on YouTube. An increasing share of today’s lawyers dedicate significant effort to top social media platforms where they can build brand awareness while keeping connected to qualified leads, current clients, and long-term contacts.
According to the American Bar Association’s 2019 Legal Technology Survey Report, 80% of attorneys maintain a presence on social media. LinkedIn is by far the most favored platform, with 79% of survey respondents taking advantage of the professionally-oriented site. Many also rely on Facebook, Twitter, and other prominent networking options.
It’s impossible to deny the opportunities afforded by social media, but today’s top platforms also pose several challenges worth considering. Ethical pitfalls, in particular, should spark concern. When embracing social media, lawyers risk breaking the ethical guidelines they so stringently seek to abide by in other areas of their practice.
Without a strategic marketing plan, it can be difficult for law firms to know which types of social media content are acceptable—and which cross the fine line of forming attorney-client relationships or breaking confidentiality. Thankfully, the ABA and various state bars provide extensive guidance to help lawyers navigate top social media challenges.
Social Media as Attorney Advertising
The US Supreme Court highlights lawyer advertising as commercial speech worthy of protection under the First Amendment so long as it is not false or misleading. Several states regard law firm-oriented social media content as attorney advertising, thereby ensuring its constitutional coverage. That being said, practitioners must address the inherent differences between social media advertising and more traditional forms in order to avoid detrimental or misleading practices.
Confusion regarding social media’s role in advertising often involves the use of instant messaging features, which are prohibited under the guidelines of multiple state bar associations. Florida, for example, limits unsolicited instant messaging for third parties that are not current clients or fellow attorneys.
Accidental Attorney-Client Relationships
Instant message outreach constitutes just one form of communication that is best avoided for third parties. Additionally, attorneys should limit comments on social media posts, especially in response to non-clients.
The wrong response could be misconstrued as establishing an attorney-client relationship where none had previously existed. This, in turn, prompts the full range of ethical considerations and obligations related to conventional attorney-client interactions.
Disclaimers provide a valuable means of alerting followers to the true role of social media. These should be included not only on official law firm accounts, but also on any business-oriented profiles dedicated to a given practice’s individual attorneys.
Disclosing Privileged Information
At first glance, your legal track record may seem like the perfect opportunity to convince followers of your trustworthiness and ability to handle their concerns. While it’s possible to reference your background on social media, it must be done with extreme caution. With each mention of past case outcomes, you risk disclosing privileged information. This imposes on client confidentiality in clear opposition to your most basic obligations as an attorney.
ABA Formal Opinion 10-457 mandates that all lawyers seek explicit permission from clients before posting details about their cases online. This requirement applies both to discussions of favorable verdicts and responses to negative reviews.
False or Misleading Statements
As referenced above, the U.S. Constitution only protects attorney advertising that avoids misleading statements. Unfortunately, the bold nature of the most effective social media posts can make it difficult to avoid leading followers astray.
Steer clear of language denoting “expertise” or “specialties.” Instead, replace such remarks with references to top practice areas. Posts that can be misconstrued as guarantees of specific case outcomes should also be avoided.
Social media ethics can seem murky in the context of law firm marketing. Still, there’s no need to abandon your LinkedIn or Facebook page just yet. With a little due diligence, you can make the most of this extraordinary marketing opportunity while continuing to abide by ethical standards. A conscientious approach will allow you to ethically engage with leads and clients alike as you cement your brand and your status as an industry authority.