Tuesday, June 25, 2013

Why Can't I Say That?

After last month's article titled: Facebook Dangers for Lawyers, I received a number of  inquiries asking, "Why can't I say that?"

Two points come to mind:

One is the advertising/communications rule.

A recent opinion from the California bar's ethics committee (Formal Op. 2012-186) the question is addressed: Under what circumstances would an attorney's postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?

The published opinion presented five examples of posts:
1.) "Case finally over. Unanimous verdict! Celebrating tonight."
2.) "Another great victory in court today! My client is delighted. Who wants to be next?"
3. ) "Won a million dollar verdict. Tell your friends and check out my website."
4.) "Won another personal injury case. Call me for a free consultation."
5.) "Just published an article on wage and hour breaks. Let me know if you would like a copy."

How do these posts appear to you? Are they similar to any posts that you might have made?

The opinion concludes that the advertising rules do not come into play if a lawyer's social media post merely announces a victory or recent publication (examples 1 and 5), without suggesting that the lawyer is in the market for new clients. But when a message expresses the lawyer's willingness to be hired (examples 2, 3 and 4), the posts must comply with Rule 1-400.

This holds true on any site that can be accessed by the public, including your blog, website and the legal directory sites where you have an opportunity to post information or answer questions. A quick disclaimer stating your answer wasn't a solicitation for clients, after you stated,  call me, etc. won't protect you. It's much safer to follow the Rule.

It is a professional hazard to think that a post on a "personal" social media site allegedly seen by only "friends or connections" will be safe communications. Friends will have friends, who have friends, who may also see these posts. Regardless of your privacy settings today, the settings may default anytime the social media site makes a system upgrade, making all your posts public. "It's not my fault." won't help.

and the other point is the appearance of impropriety.

The good and bad is that the data on a social media sites is highly searchable.  Photos, posts, comments on posts and peer endorsements are especially popular in search results.

If you are going to post photos, I strongly suggest that you maintain the highest privacy setting and be cautious of who you tag in your photos. An attorney socializing with a judge or mediator can be an innocent event, until a juror or opposing counsel, doing their due diligence, finds it.  Most of the judges I have spoken with at social events tend to avoid the camera, and have told me that they don't want any photos of themselves placed on the internet. So I don't feel bad when they turn or walk away when a camera approaches.

Recommendations and peer reviews are another tricky area. All dependent on how it is worded, if an attorney posts a glowing review on a mediator's profile or vise versa, it can possibly be construed as an appearance of impropriety leading to a conflict of interest. If a mediator has reviews only from plaintiff attorneys or only from defense attorneys, it could put the mediators' neutrality into question.

There are other areas of concern unique to certain social sites, which I will cover on my blog and in future newsletters.

Social media has a number of advantages, and when used properly can be an marketing asset to you and your firm. I'll address more of this topic in future newsletters.

The bottom line - be safe, not sorry. Know the rules and think of the bigger picture before posting, and when in doubt - dont!

For assistance, training or consultation with your internet marketing, call 800-569-8279 or email

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