Although this article is geared towards attorneys in Colorado, several non-attorneys who have read it actually found it interesting. Most people don’t realize that attorneys have rules that we must follow when we advertise – whether online, through print, or over the mail. Although this doesn’t go over very many areas, for anyone interested in social media, I figured I would post it. In addition, even if you aren’t an attorney, it just shows that your industry may be regulated too and you should always contact an attorney to ensure that you aren’t violating any laws when you Facebook, blog, and tweet away!
Recent Opinions on the Ethics of the Use of Social Media by Attorneys
Over the past few months, the buzz about social media has been hard to miss. Following the Haitian earthquake, CNN reported family members were connecting via Facebook and Twitter. Celebrities such as Ashton Kutcher, who led a campaign to get over 1,000,000 followers on Twitter, use it to connect with fans. Even the Denver Bar Association has a Fanpage on Facebook to disseminate information to its members.
Just as individuals, celebrities, and businesses are using it to connect with friends, fans, and clients, attorneys are also starting to use it for professional and social development. However, as their use increases, so do the questions about how to ensure that use complies with the Rules of Professional Conduct. Several states have issued opinions with varying degrees of admonition to the attorneys and judges who have used sites like Avvo, Facebook, and LinkedIn incorrectly in the eyes of the regulating bodies.
Two recently published Ethics Advisory Opinions regarding the use of social media by attorneys have come from Florida and South Carolina. The first was the Florida Judicial Ethics Advisory Committee Opinion 2009-20 issued November 17, 2009. In this opinion, Florida answered the question whether a judge may “friend” an attorney who may appear in his court on a social networking site such as Facebook. Florida determined that by being a “friend” of a judge on Facebook, the appearance was that the “friend” might be in a position to influence the judge. Fearing the appearance of impropriety by the general public, Florida determined that if a site required the approval of a person as a “friend” by a judge, such as Facebook, that the judge may not accept the request from anyone who may appear in his courtroom. This opinion did state, however, that if no action was required by a judge then this was not unethical (for instance, some elected judges create “Fanpages” on Facebook for political supporters and cannot control who does or does not become a fan). It is worth noting that there was a minority that stated that the term “friend” online did not mean someone was in a position to influence a judge but rather just a social acquaintance and that they did not agree with the full opinion.
The second opinion affecting online social networking is South Carolina’s Ethics Advisory Opinion 09-10 issued last fall. In this opinion, South Carolina answered questions about the use of websites that list and allow reviews of attorneys. Specifically, the site in question allowed an attorney to “claim” his profile and ask for recommendations from other attorneys and clients (with most people believing that the website in question was avvo.com although not specifically mentioned). However, the site did not allow attorneys, even those who claim their profiles, to control who recommended them or what was said in these recommendations, much like the websites Avvo.com and Linkedin.com and, perhaps the better know, Martindale-Hubbell and SuperLawyers. Reviewers could also post recommendations, or complaints, about an attorney anonymously without any control by the attorney. As any information posted on a “claimed” website was determined to be an advertisement, whether written or controlled by the attorney or not, South Carolina stated that it must conform to their Rule 7.1 and 7.2. Further, South Carolina even stated that if a someone wrote an endorsement of an attorney, it was the attorney’s responsibility to “counsel the client to conform the advertisement to the Rules of Professional Conduct and that, if the client refused, the lawyer’s continued representation of the client may imply the lawyer’s authorization or adoption of the advertisement” violating the Rules.
Much discussion has come from these opinions both online and offline with attorneys that use social media. In an ABA Journal article, one attorney was baffled that in the eyes of South Carolina’s ethical panel, he was responsible for not only what he said but also what non-clients said on a website (as one cannot determine whether it is really a client who posted a recommendation or not). Should the opinion be expanded, it could be the death sentence for attorneys using sites such as LinkedIn to help grow their employment opportunities. Regarding the Florida opinion, should other jurisdictions follow suit, the outcome could be devastating for both the professional and social development of attorneys and judges. For instance, a longtime law firm colleague may find she has to “unfriend” her prior colleagues once she takes on judicial robes if those former colleagues may appear in her court.
Although Colorado has not specifically regulated attorneys use of social media networks, attorneys who use social media for both professional and client development must be aware of the developments in other jurisdictions and the interplay of our Colorado Rules of Professional Ethics on the use of social media networks. This article only mentioned two of the many issues that have arisen in the past few years. For instance, it doesn’t even touch on: whether if you list practice areas under the “specialty” section of your LinkedIn profile you violate Rule 7.4 (many say yes if you don’t have a disclaimer), whether if researching an opposing party online could create issues if the lawyer misleads someone about his identity under Rule 4.1 (most say yes if you lie about who you are), or whether if saying you are having lunch with a perspective client on Twitter can be seen as breaching client confidentiality under Rule 1.6 (again, probably yes). As the role of social media and online marketing expands, whether Colorado will begin to create new regulations, or apply the regulations we already have to the emerging media, remains to be seen. However, the opinions issued in both Florida and South Carolina serve as a word of caution to all attorneys who use social media to review their profiles, postings, and other content to ensure that it is in line with the Colorado Rules of Professional Conduct and the rules of any other jurisdictions in which they are licensed.