Thinking about celebrating your latest triumph on Facebook?
Pop quiz hot-shot.
Does your social media victory lap concern your availability for professional employment? If so, you might be in violation of your state’s ethics rules.
As reported by Bob Ambrogi at LawSites:
Would you consider it ethical for a lawyer to post the following to a social media site such as Facebook:
“Another great victory in court today! My client is delighted. Who wants to be next?”
In California, that post would violate the Rules of Professional Conduct, according to a recent ethics opinion issued by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. The opinion, issued late in December, considered the following issue:
Under what circumstances would an attorney’s postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?
According to The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion NO. 2012-186, posts by attorneys on social media websites are subject to professional responsibility rules governing attorney advertising if they constitute a “communication” within the meaning of rules.
In other words, the rules are not relaxed based upon the medium of communication. Which, in my humble estimation, is a good thing. Ethics rules should not be medium dependent. But rather, content dependent. Speaking of content, here are the examples considered by The California Bar:
· “Case finally over. Unanimous verdict! Celebrating tonight.”
· “Another great victory in court today! My client is delighted. Who wants to be next?”
· “Won a million dollar verdict. Tell your friends and check out my website.”
· “Won another personal injury case. Call me for a free consultation.”
· “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
We can endlessly debate the taste and effectiveness of each of these statements. But their ethics?
Assuming that each of the statements is factually true, is it reasonable for people to be misled by these communications?
Where is the deluge of grievances by clients who have been deceived by social media posts? Would posting “ATTORNEY ADVERTISING” at the end of each post set your mind at ease?
Of course, problems arise when the rules go beyond regulating false or misleading communications about the lawyer or the lawyer’s services. Such as when the communication is inextricably intertwined with editorial speech.
Darn that pesky 1st Amendment.
Or when they become completely unworkable, such as when lawyers are required to take screenshots of social media posts that may be deemed to include communications about the lawyer or the lawyers’ services.
Of course lawyers should be responsible for auditing their websites & social media profiles for compliance with ethics rules. But when the rules attempt to make nebulous distinctions about what constitutes marketing and what does not, they usually get it wrong.
And to what end?
Do these rules do anything to protect the public? Does anybody actually read disclaimers? How many people do you think will read disclaimers on facebook & twitter?
P.S. Head on over to Google and do a search for “personal injury lawyer.” How many ethics violations can you count in the results page?