USING SOCIAL MEDIA IN YOUR PRACTICE – BEWARE
Dean R. Dietrich
Ruder Ware
- Introduction
A.Social media has become a very important part of the advertising done by lawyers for new business.
B.Law firms are using social media to announce activities and events involving lawyers of the firm and are finding that they are receiving good exposure with this media.
C.There are a number of ethical concerns that lawyers must be careful about when using social media as part of their practice.
- Postings On Social Media May Constitute Advertising
A.Social media postings should be viewed like an electronic yellow pages add.
SCR 20:7.1 provides that a lawyer advertising may not be false or misleading.
Lawyers must be careful about what is posted on a social media page to ensure
that it is not misleading to any reader.
B.Falsement misleading is defined in the Wisconsin rules of professional conduct
but the factors are only listed in the comment under the model rules.
- False Or Misleading Statements Will Result In Grievances And OLR Review
A.SCR 20: 7.1 defines false or misleading as:
B.Lawyers must be careful to comply with this definition and avoid review by the
office of lawyer regulation.
C.There is always a question whether commercial free speech rights would supersede lawyer regulations and there has been reluctant to prosecute lawyer advertising cases however nationally, there is a great deal of scrutiny of lawyer
advertising particularly under social media so that lawyers must be careful of what they put in their adds.
D.Violation of the advertising rule may also rise to a violation of SCR 20:8.4
regarding Misconduct.
E.Lawyers may not call themselves a specialist in a posting unless they have been
certified as a specialist by a recognized organization.
F.Using the word “ expert” maybe allowed under the right circumstances and much
will depend upon the type of practice of the lawyer.
- Lawyers Must Be Careful That A Social Media Posting Does Not Constitute An Improper Solicitation Of A Party For Legal Services
A.This topic has not been fully vetted so there is some risk that a solicitation by a
social media post will violate SCR 20:7.3(b).
B.If the lawyer knows that a person who is in need of legal services will likely read
the posting, the lawyer may be accused of direct solicitation of that prospective
client in a prohibited fashion. The interactive nature of social media postings
places the lawyer at risk of being accused of a rule violation.
C.A logical analysis is that the posting on a social media site is something that can
be ignored by the reader and there is no response required so it should not
constitute a direct solicitation of a prospective client.
D.Posting something on a social media page when the lawyer knows that the
prospective client is suffering from anxiety or trauma from an event may
constitute a violation of the anti-solicitation rule.
E.“Friending” a person on a Facebook page after the person has suffered a traumatic
event would likely be considered a direct solicitation of that potential client.
- There Is A Heightened Obligation To Ensure Confidentiality Of Information When Using Social Media
A.Duty of confidentiality under SCR20:1.6 is extensive and extremely important.
Clients expect absolute confidentiality and any mention of a client on a Facebook
posting could constitute a violation of the Supreme Court Rule.
B.Users of social media have become very lax in what is posted and what postings
may impact others. This same type of comfort regarding the content of social
media postings should not apply when dealing with client matters.
C.Some would argue that any mention of a client and the representation of a client is
a violation of the Confidentiality Rule.
- You May Not Become “Friends” With A Judge Or Decision Maker
A.Wisconsin has not addressed this issue but other states have clearly ruled that a
judge should not become a “friend” of lawyers who are involved in representing
clients before the judge.
B.The use of “friend” concept has also been abused in ways to try to obtain special
information about an opposing party. Misrepresenting your status as a “friend” of
an individual will likely result in a grievance and OLR investigation.
C.Lawyers have also gotten in trouble for posting information to their social media
page that is contrary to the information they have provided to a judge who had
friend status to that lawyer.
D.Access to public information on a social media page is certainly acceptable and
has been the source of information in many divorce proceedings and other
litigation.
- Lawyers Must Be Careful Not To Communicate With Individuals Who Are Represented By Counsel Through Social Media
A.Lawyers do not have to be afraid of postings simply because a party represented
by counsel will read a public posting although the content of a public posting
would likely not relate to a specific representation matter.
B.If a lawyer knows that an opposing party who is represented by counsel is likely
to read his/her social media page, special caution must be taken to ensure there is
no communication relating to the lawyer’s representation of the client.
C.This requires lawyers to think twice before they put postings on a media page that
relate to specific representations.
- Using Social Media To Communicate With Unrepresented Persons May Also Create Ethical Problems
A.Lawyers are required to disclose their representation if they are communicating
with an unrepresented person.
B.It would be difficult to see how a social media posting would constitute
communication with an unrepresented person in a particular matter but directing a
post to a specific person about a representation could occur.
C.This is another example why lawyers must be careful when they are using social
media to engage with other persons.
D.Using social media simply as an electronic add or an electronic yellow pages add
should not present problems under these specific rules.
- Media Post Could Create An Attorney-Client Relationship
A.Using social media to communicate with others or to invite questions from others
has many risks.
B.Responding to a question through social media based upon a social media add
could create an attorney-client relationship and ultimately result in the lawyer
being disqualified from representation.
C.Inviting questions on a webpage or social media page should contain a disclaimer
indicating that no attorney-client relationship is being created by a general
response to a question. This activity has not been used extensively but as
technology and social media usage expands, the temptation will also increase.
- Answering Questions On Social Media Or WebPages Could Result In Unauthorized Practice Of Law Considerations
A.A response to a question on social media could result in a lawyer engaging in the
unauthorized practice of law in another state.
B.We have not seen increased enforcement in this topic but again the increased use
of social media pages for communication with others will open the door to this
type of consideration.
C.Lawyers would be well advised to identify the extent of their authorized practice
of law and that any responses limited to the application of law in their
jurisdiction.
- The Use Of Testimonials And Endorsements And Lawyer Ratings Can Create Problem Areas
A.The definition of false and misleading is a consideration in the use of testimonials
and endorsements.
B.Wisconsin has a special supreme court rule that addresses the use of testimonials
and endorsements. See SCR20:7.1(on Page 22).
SCR 20:7.4(d) provides that an attorney may only call him/herself a “specialist” under limited circumstances:
C.Lawyers must follow these rules diligently to avoid an investigation from OLR.
D.The use of ratings systems such as AVVO are potential areas of concern.
Lawyers who “own” their page on these services are responsible for monitoring
the content of the page and trying to correct any inappropriate statements posted
by others.
E.The ability to control what is posted on a rating page is challenging. Lawyers
should not allow false or misleading ratings to continue on a rating page if they
have some control over the use of that page.
- Conclusions
A.Using social media is like electronic advertising. Follow the advertising rules to
avoid controversy.
B.Investigations regarding lawyer conduct when using social media are infrequent but will continue to grow because of the anticipated expansion of these
communication tools with the public.