Mcle Self-study Article: Ethics of Social Media for Lawyers: Where Stunting for the Gram Meets Losing Your Bar Card

• Jurisdiction: California,United States
• Author: Michele Ferri
• Publication year: 2020
• Citation: Vol. 45 No. 1

MCLE Self-Study Article

Michele Ferri

Law Offices of Lurie and Ferri

Jonathan Lurie

Law Offices of Lurie and Ferri

ETHICS OF SOCIAL MEDIA FOR LAWYERS: WHERE STUNTING FOR THE GRAM MEETS LOSING YOUR BAR CARD

(See end of this article for information on receiving 1.0 hour MCLE self-study credit in Legal Ethics.)

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Social media is a pervasive fact of life and is as deeply entangled with the practice of law as it is with the lives of your clients. From LinkedIn and Facebook, to Avvo and Quora, social media posts and client reviews have a huge impact on every attorney's practice of law. However, bars are often slow to react, and this results in a patchwork of ethics opinions which generally follow the same principles but are a bit fuzzy on the details. This means guidance can often be thin in certain areas, and often requires a survey of multiple states to get an idea of how the ethics rules interact with social media. From your own competence, handling testimonials, investigation using media, and even advising on a client's social media presence, there are pitfalls every California lawyer should be aware of and opinions shaping best practices in an uncertain landscape.

Social Media Competence

To start with, how much do you need to know about social media? Some attorneys have practiced since before there was a smartphone in every pocket and might not be particularly comfortable with "tweeting" or "stunting for the gram." However, you can bet at least some of your clients are intimately familiar with the filter functions of Snapchat. In the ABA Model Rule 1.1, comment 8, the ABA suggests attorneys must be at least "socially aware," of social media for competence purposes, even if you don't need to be completely social media savvy. This includes understanding the "benefits and risks associated with relevant technology." Some states, such as Pennsylvania, Florida, D.C., and New York, have also issued more clear requirements.¹

The bottom line? It's an explicit competence issue to at least be conversant in how social media works, and what your clients might be getting up to on it that will get them into trouble. You also need to be able to identify how social media can be used for investigation purposes to advance your client's case. Even looking all the way back to 2013, the Ninth Circuit had already ruled that a lawyer's failure to locate and use a purported sexual abuse victim's recantation on her social networking profile constituted ineffective assistance of counsel.²

Advertising and Solicitation

Aside from competently advising your clients, you'll need to protect yourself from the bar boogeyman: Rule 1-400, Advertising and Solicitation. Rule 1-400 applies to "any message or offer made by or on behalf of a member concerning the availability for professional employment...."³ This means the easiest way to avoid the rule is to phrase your post correctly, and not directly say you're taking on more clients. However, in the social media context, this can be tricky, since it's hard to format a spur of the moment tweet or Facebook post, never mind fit a bar mandated disclaimer in it. However, beyond the usual ethical rules regarding guarantees, avoiding false or misleading statements, and representations of being an expert, the most dangerous things to watch out for on the social media side of things are making sure testimonials are ethically compliant and avoiding solicitation in your social media posts.

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California's Rule 1-400, generally speaking, applies to any communication where you're looking for business.⁴ This can easily cover social media posts. California ethics rules also presume a testimonial misleading, unless it includes a disclaimer like "this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter."⁵ Finally, actually giving any sort of guarantee is never appropriate.⁶

The California State Bar's Formal Opinion 2012-186 gives some examples which highlight these common issues.⁷ "Another great victory in court today! My client is delighted. Who wants to be next?" manages to check all the boxes of what not to do.⁸ It is both a testimonial which speaks about the client's attitude, and a roundabout guarantee, implying the next client will also be victorious. The testimonial needs a disclaimer, and the guarantee of results is never ok. It's also a communication that suggests availability of employment, which needs to clearly be stated as an advertisement. On the other hand, "Case finally over. Unanimous verdict! Celebrating tonight." is generally all right, because it is not accompanied by an offer or request for employment and avoids Rule 1-400 entirely.⁹ Bragging about how good you are at your job is also not directly solicitation. However, you should be careful in how you word such posts.

For reviews and testimonials posted on your own website or social media profile, you don't necessarily need the California mandated disclaimer squeezed into every review. You can have one larger, conspicuous disclaimer which covers all the testimonials or reviews on your website or page. However, you are obligated to include this site-wide disclaimer in as prominent a manner and as close to the actual testimonials as you can.¹⁰

Social media also has a whole lot of...