Is Your Law Firm’s Social Media Marketing Ethical?

 In Legal Malpractice

As firms close out the year, plans are being finalized for next year’s marketing campaigns. Indeed, firms are planning many creative ways to market themselves in the new year – TV commercials, billboards, radio advertising, internet advertising, and of course, the seemingly endless marketing through daily social media. As attorneys, we are trained to be excellent communicators, but how does that translate when trying to effectively communicate with our target market via social media platforms?

In today’s world of split second likes, loves, and replies on LinkedIn, Twitter, and others, attorneys have to be aware and deliberate about what we post to our social media.  What we post establishes our brand.  Indeed, social media can prove to be a double-edged sword being both helpful as a marketing tool and equally as harmful as an ethical pitfall.  Are your social media efforts in compliance with the Rules of Professional Conduct?  How does your social media portray you personally?  How does your social media portray you and your law firm professionally?

Everything you choose to post is a building block to enhance your professional brand whether posted to your business social media or your personal social media.  When posting to your social media for your business think about what message you are sending.  We recently learned of an attorney who markets himself on TikTok.  This particular attorney chooses to tout himself and his abilities through videos.  He weaves stories of his victories including details of case fact patterns.  In and of itself, video is a wonderful way to market yourself.  The problem is not that this attorney wants the world to know about his successes, the problem rests in the message.  You see, this attorney brags about getting his clients lesser sentences than they deserve in criminal cases.  The revealed disturbing fact patterns usually involve someone driving under the influence, causing significant physical damage to another’s property, and oftentimes involve personal injury to innocent bystanders.  He can’t believe his luck at the outcomes he gets for his clients and can’t wait to share it on his social media outlets.  But what message is he really sending?  Is he telling the public that it is ok to break the law, cause harm to others, and then hire him to get them out of their charges with little more than a slap on the wrist?  Is that really what we want the public to believe?  Are these sort of messages even ethical?  Is he breaching his duties of confidentiality and loyalty to his clients? What about his former clients that may not have gotten a similar stellar result?  Is he opening himself up to a potential lawsuit or Bar complaint by a former disgruntled client that wonders why they did not get a similar result?

Although the State of Georgia has not created a policy on social media, the ABA has instituted guidelines to assist lawyers in understanding their obligations while using social media. These guidelines can be found in ABA Formal Opinion 14-480. Some of the guidelines include:

  • Duty of Confidentiality
    • According to Model Rule of Professional Conduct 1.6, online communications are governed by the duty of confidentiality even if the information is public record.
    • If it is reasonably likely that a third party could ascertain the identity of a client from the information used in a social media post, it might be a violation of Rule 1.6.  In one instance, an attorney from Illinois cited in ABA Formal Opinion 14-480 received a 60-day suspension for posting about her clients on social media without their permission.
  • Advertising and Client Solicitation
    • Any communication discussing a lawyer’s services through any form of media could be considered advertising according to the ABA’s rules regarding the solicitation of clients.  Make sure you are familiar with these rules and proceed accordingly as it can often be difficult to determine whether a social media post actually serves as an advertisement.
  • Creation of an Attorney-Client Relationship
    • Be aware of any comments and responses that you make on social media that might later indicate the establishment of an attorney-client relationship by implication or the perception of an attorney-client relationship.

When using social media to market your legal services, it is important to create a strategy to follow so you can ensure that you are acting in line with your ethical obligations.  Below is a helpful checklist of items to consider:

  • Know the rules and responsibilities lawyers have on social media in your jurisdiction.
  • Identify your goals.
    • What do you hope to gain from your social media marketing campaign?
    • Are you looking to build your client base?
    • Do you want to build greater brand awareness within the legal community?
    • Do you want to generate discussion about a particular issue or your practice area?
  • Do your research.
    • What are your competitors doing on their social media sites to market themselves?
    • Does the type of marketing and message resonate with you and what you believe your client base will connect with?
  • Consider your content.
    • Think about how your content will be received by others.  Will the content portray you in a positive, professional light?  Will the content reflect on the legal profession positively?
    • Consider whether the content shares any confidential information from a client such that you would breach an ethical duty.   The ethical duties of client loyalty and client confidentiality are so fundamental to the attorney-client relationship that you must always keep them top of mind given the ease with which one can share information on social media platforms.
    • Could someone reasonably ascertain the identity of your client from the information you intend to share on your social media platform?  If so, it could be a Rule violation.
    • Before posting content to social media, ask yourself, “Is this information I would feel comfortable announcing publicly at a State Bar related event?”

In this ever-increasing world of social connectedness, make sure you are thoughtful and informed in how you proceed to market yourself and your law firm. What information you share with the world could end up being more damaging to your law practice than helpful.  Ensure your actions and words are in line with the Rules of Professional Conduct, and make sure that your communications portray you and the legal profession in a professional and positive light.

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