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Friday, July 15, 2016

Legal Ethics and Social Media: Some Concerns to Explore Before You Engage

Every business savvy attorney knows that social media can be a powerful tool for attorneys and law firms. However, social media can also raise advertising and solicitation ethical concerns. So before you post any content on social media channels, you need to know about the ethical pitfalls you may encounter when publishing information about your firm, regardless of the platform.

But is social media really advertising?

There is an ongoing debate regarding whether social media falls within the definition of “advertising” under the ethics rules.  While most people think of social media as a free for all where rules are nonexistent, according to the ABA and many state bars, law firm websites are categorized as advertisements.  Since social media profiles are by nature websites, they are considered de facto advertisements and are bound by the same rules and restrictions.

Because ethical rules governing advertising and solicitation vary by jurisdiction, this can make a law firm’s use of social media very ambiguous. As Alan Dershowitz has said in his defense of WikiLeaks founder Julian Assange, “the Internet knows no national borders.” By their very nature, social media posts cannot be limited to one geographical area and therefore cannot be limited to one jurisdiction. Therefore, ethical concerns may arise when attorneys interact with potential clients on social media as what may be permissible in one jurisdiction, may not fly in another.

Here are a few examples of how social media content may trigger ethical concerns:

  • Facebook: Friend requests to potential clients providing legal services with no prior relationship can be considered solicitation.
  • LinkedIn: “Specialties” on LinkedIn profiles could run into an ethical issue as claiming a law professional as a “specialist” in an area of law is generally prohibited.
  • Twitter: Twitter can violate rules prohibiting electronic contact to solicit business from a potential client with whom you have not had prior contact. Twitter’s character limitations compound the issue, preventing attorneys from including advertising disclaimer/disclosures required by some jurisdictions. 
  • YouTube: Ethical rules governing video vary. Videos often need to be evaluated before posted.

Bottom line, social media can be very beneficial to your practice as long as you are aware of potential ethical consequences.  Understand the rules in your jurisdiction and always work with social media professionals who understand that lawyers are governed by rules of professional conduct that impact their marketing decisions.

Harvey, C. V., McCoy, M. R., & Sneath, B. (2016). 10 Tips for Avoiding Ethical Lapses When Using Social Media. Retrieved July 15, 2016, from http://www.americanbar.org/publications/blt/2014/01/03_harvey.html  


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