As I signed off of the American Bar Association’s CLE webcast and phone conference yesterday, Ethical Implications of Marketing in a Web 2.0 World, I was left, not surprisingly, with more questions than answers. The CLE provided no magic bullet or easy catch-all answer, but the speakers—Micah Buchdahl, Michael P. Downey, and Scott G. Wolfe, Jr.—did raise interesting legal issues and some controversial points surrounding lawyers blogging, tweeting, facebooking and connecting on LinkedIn.
Below is my best attempt to capture the highlights of the conversation, and to provide a forum for you to join me in the comments below in examining some of the questions raised by this CLE.
Learn your state’s legal marketing rules
A recurring point in the CLE was that so much of the legal ethics of social media is state-specific. Read your state’s rules and opinions. You have to comply with the ethics laws of any state where your law firm has an office, and you may have to comply with the laws of any state where you actively solicit clients. That said, there are some states mentioned by the CLE’s speakers that have recently attempted to strictly regulate legal online advertising.
If you’re in New York, Louisiana, Florida, or Connecticut, pay extra special attention to what your bar association has to say about legal ethics and online advertising. For instance, one of the speakers on the call, Scott Wolfe, Jr., recently sued the Louisiana Attorney Disciplinary Board in U.S. District Court, alleging that the state’s recently amended rules of professional conduct regarding online legal communications restrict, unduly burden, and chill the exercise of commercial speech rights under the First and Fourteenth Amendments the U.S. Constitution. The case is still pending.
Traditional vs. non-traditional online advertising for lawyers
Legal marketing in a Web 2.0 world is complicated for bar associations for many reasons, but one of the most significant is that legal marketing on the web, even when it’s done in a traditional format, is completely different from the legal advertising that bar associations are used to regulating. Google’s point-and-click ads for law firms come the closest to traditional advertising, but unlike radio and TV ads, they can be tailored and tweaked easily and frequently. Some bar associations require attorneys to submit all their advertisements for review—but how can one do this with an online ad that has 30 permutations?
Non-traditional legal advertising like that found on blogs, Facebook, LinkedIn, and Twitter is even more complicated. The CLE focused on some of these issues in depth.
Legal blogs and advertising
The consensus by the speakers on the ABA’s CLE was that your professional/legal blog is your website, and a website is a form of advertising under a state’s legal ethics rules. That means that if your state has rules for your website (like listing your geographic location or the names of your attorneys, or including a disclaimer), then those same requirements apply to your blog. A more complicated issue occurs when you guest write a post on someone else’s blog (like I am doing now), or comment (with your name, law firm, etc) on someone else’s post on a different blog. Can the bar association limit this form of advertising? What if my blog post discusses a person’s legal rights under a new law? Will it be considered political speech or commercial speech?
LinkedIn and attorney advertising
The CLE speakers made some interesting points regarding “advertising” in your personal or company profile on LinkedIn. Make sure that you’re not saying anything on LinkedIn in your personal or company profile that you wouldn’t say on your website. If you don’t have a specialty in patent law, don’t say that you have one on your LinkedIn profile—leave the “specialization” field blank. Testimonials on LinkedIn are permissible, so long as you don’t make—or permit others to make—false or misleading statements in recommendations, or participate in the tit-for-tat I recommend you, you recommend me game, since that would likely violate Model Rule 7.2 by offering value in exchange for a recommendation.
Also—for those law firm administrators and managing partners reading this—don’t ban LinkedIn (or Facebook, or Twitter) by your employees. Social media sites can be great legal advertising tools. Reasonable social media policies can be found online for law firms and other legal organizations.
One of the speakers asserted that if you’re going to put your firm’s name on your LinkedIn page, some disciplinary authorities would say that your profile has thus immediately become an extension of your firm’s website and now requires a legal disclaimer akin to your website. The legal networking site JD Supra has a disclaimer on the bottom of each profile page stating that the profile may constitute attorney advertising—can and should LinkedIn profiles for lawyers state the same thing?
A few thoughts on Facebook for lawyers
We at Lawyerist have written a bit about this subject, and the CLE’s speakers correctly stated that if you are not on Facebook because you are afraid of the legal ethical implications of exposing certain areas of your personal life to your professional contacts, or vice versa, don’t be afraid. Get on the sites and learn how to create professional Facebook privacy settings. And while you’re on Facebook, don’t do anything unethical, like having someone else send a Facebook friend request to a party during litigation, or change your regional network to spy on a party or witness. Just subpoena the party’s social networking pages instead.
Last thoughts on the legal ethics of Twitter
Only two of the participants on the call—myself and one other woman—tweeted the hashtag during the CLE, so my guess is that the legal ethics of Twitter is not yet that relevant for most of the lawyers on the call. That said, I was able to ask a question that has been bugging me for a while and got a good answer. Through Twitter advanced search, one can subscribe to the RSS feeds for searches like: people who tweet about ‘attorney’ within 100 miles of Minneapolis.
So I asked, what happens if someone in Minneapolis (a total stranger) tweets “Anyone know a good entertainment lawyer?” and I get notified of this random tweet because I have the above RSS feed. Can I respond if I am an entertainment lawyer? Can I recommend a colleague who is a great entertainment lawyer? The CLE speakers’ response was (1) if you can email the person and thus take the conversation out of real-time contact, do so; and (2) if you can’t email the person, then tweet them with a link to your website, or the website of your colleague. That puts the ball in their court to make the contact and follow up on the recommendation, and is less invasive than engaging them on Twitter itself.
Congrats to the ABA for a great CLE, but—as expected—the CLE only touched on the beginnings of these complicated ethical issues.