Attorney Marketing and the New "Word of Mouth"

The American Bar Association's Commission on Ethics 20/20 recently released its draft proposal of changes to the Model Rules of Professional Conduct to provide lawyers with more guidance on how to use social networking sites as client development tools.  The Commission focused its revisions on three rules -- Rule 1.18 (identifying a lawyer's duties to prospective clients), Rule 7.2(b) (prohibiting a lawyer from giving anything of value for recommending the lawyer's services), and Rule 7.3 (regulating a lawyer's direct contacts with potential clients).

First, the Commission proposes to add a more detailed definition of a "prospective client" to account for the increasing volume of email and social media communications that lawyers now receive from persons seeking legal services.  The Commission proposes a "prospective client" be someone who has "a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship."  The Commission also explains that a factor in determining whether a prospective client reasonably expects the lawyer is willing to consider forming an attorney-client relationship is whether the lawyer's site included "any warnings or cautionary statements" disclaiming the lawyer's obligations, and whether such warnings or statements "were clear, reasonably understandable, and conspicuously placed."

Second, the internet slightly blurs the line between traditional or legacy advertising, such as the phone book, for which lawyers are allowed paying reasonable costs, and recommendations such as referral services, for which lawyers are prohibited from giving anything of value.  The Commission observes that websites such as Legal Match, Total Attorneys, and Groupon fit nicely in this new gray area.  Accordingly, the Commission proposes defining the term "recommending" to make clear that lawyers can utilize social media and internet advertising so long as they are not misleading or violating other ethics rules.  Specifically, a "communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, or qualities."

Third and finally, the Commission also proposes a clearer definition of what constitutes a "solicitation."  Initially, ethics opinions had drawn a line between emails, which were considered solicitation and were thus governed by Rule 7.3, and websites, which were not governed by Rule 7.3.  Now, however, social networking sites bridge this distinction, enabling lawyers to have web pages but also allowing lawyers to communicate with prospective clients via those web pages by way of email-like and chatting functions.  For that reason, the ABA Commission proposes a new definition that explains a "solicitation" occurs when a lawyer "offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific potential client."  According to the Commission, this "makes clear that advertisements that are automatically generated in response to an Internet search are not solicitations" because such advertisements are not directed to a specific client whom the lawyer knows is in need of a particular legal service.

While the Commission's proposed changes attempt to provide lawyers with additional guidance on how to avoid the ethical pitfalls into which they can hurl themselves into at the click of a mouse, the new guidance is not all-encompassing.  A lawyer also should be mindful of other cardinal rules to observe while promoting one's firm on a social networking site:

• Never reveal confidential client information.  Rule 1.6(a) (2009).  An online status update post venting about the day's work struggles could inadvertently reveal client or non‑public information jeopardizing a client matter or representation, reflecting poorly on you and your firm.
• Likewise, avoid making statements that present the risk of materially prejudicing a matter.  Rule 3.6(a).  It could be tempting to tweet about a big trial, but keep in mind that the world can see what you post.
• Do not provide legal advice or in any way create the appearance of an online attorney‑client relationship.  Understand that a discussion with a prospective client must not be fodder for online posts or blogs.  Rule 1.18(b).  Be mindful of messages from old high school friends who found you on Facebook or LinkedIn or another such site; they may want free legal advice that could create conflicts with existing or potential clients.
• Make only factually accurate and non‑misleading statements regarding you as an attorney or the nature of your practice and services.  Rule 7.1.
• Accurate portrayal of your professional background, training, and expertise is critical, and no less so in the online environment.  By no means claim to be certified as a specialist in a particular field of law, unless you are.  Rule 7.4(d).
• Finally, avoid violating the rule that often serves as a disciplinary board's catchall provision:  Do not otherwise engage in conduct involving dishonesty or deceit.  Rule 8.4(c).

Social networking sites make personal communication easier and are quickly becoming both popular and useful client engagement and business development tools.  Understanding the Commission's proposed changes and following these tips will help attorneys ethically utilize all that social networking sites have to offer.  For further discussion of these rules and the issues that derive from attorney use of social networking (and the use of social media by clients), feel free to contact Jeff Cox and Kelly Rethman at FI&C (www.ficlaw.com).  This article includes minor excerpts from Jeff and Kelly's upcoming article in the Primerus 180 publication.

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