Would it be OK for a lawyer to make the following marketing statement on his or her Facebook page?
“I just won another personal injury case for my client. If you think you were injured you need to call me for a free evaluation before it is too late!”
Sounds like a neutral post, very general, no personal details, no case specifics, nothing dangerous, right?
There are many rules and regulations designed to protect the general public from some lawyers’ unscrupulous conduct.
The American Bar Association has established the “ABA Model Code of Professional Responsibility” as well as “ABA Model Rules of Professional Conduct“. Both documents contain some pretty strict regulations regarding both lawyers’ conduct in general and lawyers conduct in terms of legal marketing in particular.
Following the lead of the American Bar Association, most individual states came up with their own rules of professional conduct that in some cases turned out to be even stricter than the American Bar Association rules.
For example, in California, there are official Rules of Professional Conduct, one of which is Rule 1-400 (Advertising and Solicitation).
This Rule prohibits, among other things, any communication to “be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.”
The “communication” is defined as “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client.”
In turn, “vexatious” is defined as “causing or tending to cause annoyance, frustration, or worry.”
Thus, any “communication” that could potentially cause worry, annoyance or frustration (the definitions of which are, by the way, not given in California Rule 1-400) would be considered a violation of the law.
The Facebook statement mentioned earlier in this article would definitely create a problem for a California lawyer.
The Rules of Professional Conduct are not easy to comply with. Not in terms of communication between attorneys and their potential clients in general, and certainly not in terms of legal marketing in particular.
First of all, it is hard to imagine what thoughts and/or reaction even the simplest and most neutral statement can trigger in some people.
Someone can observe two kids playing in a sandbox on a sunny day and become worried and disturbed by such a seemingly innocuous scene.
The same goes for the “frustration” part of the California Rule 1-400. People get frustrated because their morning coffee is too hot or not hot enough. Frustration is very, so-to-speak, “individual” feeling. There is no telling what can lead to frustration in some individuals. As to the “annoyance” part of the California Rule 1-400, there are many people who would get annoyed by too many Facebook messages, regardless of the content. So, when an attorney posts a message on Facebook and someone gets annoyed by it, will it constitute a Rule 1-400 violation? In short, many neutral things can still cause worry, frustration, and annoyance for some people, and California Rule 1-400 did not define those things properly. However, it is still enforceable, and consequences for violating it can be pretty costly. Another issue is that by default any “communication” coming from a law firm or an individual attorney is viewed as a form of “advertisement” in many states. Despite the postulates of the First Amendment. Things got even more complicated when social networks became a big part of our lives.
How should the content of a lawyer or a law firm’s social media account and online marketing be handled in light of the Rules of Professional Conduct?
There are still debates about whether social media activity constitutes a free flow of ideas protected by the First Amendment to the United States Constitution OR whether it constitutes advertisement and, as such, is controlled by the American Bar Association Rules of Professional Conduct.
Some state bar associations, realizing how far behind they are on covering the social media matters and in fear of losing control of the situation, are issuing some interesting decisions on the subject, such as “In the Matter of Horace Frazier Hunter VBA Docket No. 11-032-084907” that can be found.
In this case, attorney Horace Hunter was running his own blog on his own website discussing his own court cases he himself handled on behalf of various clients. Should not be any problems there at all, correct?
According to the Virginia State Bar, attorney Horace Hunter violated several rules of conduct, one of which was to include a special “disclaimer, as set forth in Rule 7.2(a)(3) of the Virginia Rules of Professional Conduct, to ensure that (attorney Horace Hunters’) discussion of the case results on his website does not mislead the public.” Again, attorney Horace Hunter was discussing real-life cases he was handling as an attorney. All of the cases in question were part of the public record and available to any interested party through simply visiting the courthouse or accessing the case records online. How public record can “mislead the public” in the eyes of the Virginia State Bar Association, is unclear. By the way, there was a disclaimer in place, just not the right kind, according to the Virginia State Bar. The disclaimer that attorney Horace Hunter had on his blog was as follows: “This Week in Richmond Criminal Defense (the name of the blog) is not an advertisement, it is a blog. The views and opinions expressed on this blog are sole of attorney Horace F. Hunter. The purpose of these articles is to inform the public regarding various issues involving the criminal justice system and should not be construed to suggest a similar outcome in any other case.” Sounds like a good straight-forward disclaimer, doesn’t it? Not according to the Virginia State Bar. Attorney Horace Hunter attempted to protect himself using the First Amendment Right of free speech, but he did not succeed. In addition, the Virginia State Bar Association concluded that attorney Hunter’s blog is likely to “create an unjustified expectation about results the lawyer can achieve.” Again, only real cases where attorney Hunter was a part of were discussed.
So, how can an attorney avoid all the pitfalls and still communicate via social networks effectively? Or, maybe, attorneys should stay away from social media altogether?
Truth is that attorneys simply cannot afford to ignore modern technology.
Here is why – in the past few years social media has exploded and it is hard to imagine a successful law firm without a website, blog, or some involvement in social networks.
About a year ago, on August 27th, 2015, Mark Zuckerberg, the CEO, and founder of Facebook, announced in his post that one billion people used Facebook in a single day.
Think about it – a billion people in a single day.
Simply put, the importance of social media in today’s life is impossible to overestimate or ignore.
Social media, whether in a form of blogging or Facebook page, became a powerful marketing tool for lawyers by giving them both easy access to information and professional observations from attorneys’ area of expertise. This simple approach created new opportunities for direct connection with potential clients who are in search of information on the specific subject.
Most attorneys, who start their social media campaigns, are not aware of the ethical issues that can become a problem along the way. Because social media and blogs became major channels used to promote attorney’s practice, attorneys and law firms must give great consideration to any possible ethical and professional conduct issues related to the use of social media.
Adding to the problem is the fact that the area of social media is new not only to the legal profession but to businesses in general. There are very few (if any) published cases addressing attorneys’ responsibilities in the social networking arena.
As a result, navigating social media without the benefit of established precedent leads to fear and uncertainty while using social media as a new marketing tool.
Some legal professionals are shy to get involved with social media because it seems like something new.
Good news – only the technology is new, but the concept of effectively communicating with potential clients is as old as the legal profession itself.
The basis of social media is a simple conversation. Thus, social media is just a new way of communication. Because of its convenience, it will keep gaining more and more influence will as time goes by. Its main benefit is in the ability to cut through distance and reach out to a virtually unlimited number of people.
Many attorneys and law firms today are trying to handle social media marketing using in-house resources. In most cases, they quickly realize that social media is a complex, time-consuming and never-ending task and, like every task that is outside of one’s area of expertise, it should be left to professionals.
An experienced social media marketing company can take this task head on and deliver the results that many lawyers did not even dream of.
According to 2015 “Attorney at Work,” research lawyers spend only 1,7 hour a week using social networks for professional purposes. This is obviously not enough, and lawyers are not the ones to be blamed – they are busy performing their tasks in hand.
This is another reason to outsource the social media component of the legal practice to someone familiar with the subject.
Technology is changing and people are changing with it. Law firms that are not on cue with social media will lose significant chunks of business to those that are adjusting fast.
It is no longer a “come to my office and we will talk about it” environment.
It is now a “we sell where it’s better for you to buy” environment, and lawyers, as well as other professionals, should be quick to respond to changes in the market.
A good social media marketing company can do many things for you. For instance:
- Position you as a figure of authority in the area of law your firm specializes in.
- Build a certain level of trust, so that potential clients could feel comfortable reaching out to you with their problems, just like they feel when talking to a friend or a longtime acquaintance.
- Protect you from getting carried away by online arguments. Remember that what seems like an appropriate but “a bit strong” comment left somewhere in cyberspace today, may come right back at you in the worst possible way tomorrow. Rephrasing a famous proverb, the keystroke is mightier than a sword. The words you put out there in cyberspace, whether in social networks, forums or chat rooms, can be hard if not impossible to contain once they are out.
- Represent you in the best possible way while still being truthful and fair. Customers today are like human lie detectors, especially when it comes to the online environment.
- Concentrate on your strengths, so you do not have to be all things to all people. Most clients today are smart shoppers, and they react badly if an attorney claims to be an expert in too many areas of law.
We hope this article has been helpful and are looking forward to having you as a new WiserBrand.com happy client.