Think before you "speak": what lawyers can and cannot say in the digital age.

AuthorNahrstadt, Bradley C.

Membership in the bar is a privilege burdened with conditions.

Justice Benjamin Cardozo

ATTORNEYS PERFORM nearly all of their work through speecheither through written briefs or the spoken word. As Frederick Schauer poignantly declared:

As lawyers, speech is our stock in trade. Speech is all we have. Our tools are books and not saws or scalpels. Our product is argument, persuasion, negotiation, and documentation, so speaking (by which I include writing) is not only central to what the legal system is all about, and not only the product of law as we know it, but basically the only thing that lawyers and legal system have. (1) Although words are our stock in trade (our apologies to Abraham Lincoln, who famously declared that a lawyer's time and advice are his stock in trade), we lawyers are not free to say whatever we want. Our comments--both orally and in writing--must be tempered and must comport with the Rules of Professional Conduct that govern our profession. Indeed, traditional theory has held that attorneys agree to many rules and regulations restricting attorney speech as a condition of being admitted to the bar.

Given the myriad rules and regulations that apply to attorney speech, lawyers often have questions about what they can and cannot say, especially when it comes to new forms of electronic communication such as Facebook, MySpace, Twitter and the like. This article discusses the rules governing attorney speech and provides some guidance about what lawyers can (and cannot) say on-line, about judges and to and about opposing counsel.

  1. On-Line

    In today's day and age, there can be no doubt that social media is part of the fabric of our lives. Consider these statistics:

    38,000,000 people in the U.S. age 13-80 said their purchasing decisions are influenced by social media, a 14% increase in the past six months. (Source: Knowledge Networks)

    1,000,000 people view customer service related tweets every week, with 80% of them being critical or negative in nature. (Source: TOA Technologies)

    152.1 million people in the US will use Facebook this year. (Source: eMarketer)

    15.3--the number of hours per week that the "average" Internet user spends online. (Source: eMarketer)

    93% of American teens use the Internet regularly. (Source: Teen and Young Adult Internet Use. Pew Research Center)

    45% of American adults say that the Internet plays an important role in their lives. (Source: Pew Internet)

    59% of Internet users use at least one social networking service, compared to 34 percent who did in 2008. (Source: Pew Internet)

    850,000,000 monthly active users for social networking giant Facebook, up from 500 million active monthly users last year. (Source: TechCrunch)

    96% of Generation Y had joined a social network by 2010. (Source: www.

    1 out of 8 couples married in the U.S. last year met via social media. (Source:

    80% of companies use LinkedIn as a primary tool to find employees. (Source:

    200,000,000+ Blogs on the Internet. (Source:

    54% of bloggers post content or tweet daily. (Source:

    Generation Y and Z consider e-mail passe. In 2009 Boston College stopped distributing e-mail addresses to incoming freshmen. (Source:

    Years to Reach 50 millions Users: Radio (38 Years), Television (13 Years), Internet (4 Years), iPod (3 Years). Facebook added 100 million users in less than nine months; iPhone applications hit 1 billion in nine months. (Source: www.

    If Facebook were a country, it would be the world's 3rd largest. (Source: www.

    It is no wonder that more and more attorneys are jumping on the social media bandwagon. Ask just about any lawyer today, and he or she will likely tell you that he has a Facebook page, or that she is on LinkedIn or Twitter, or that he writes a blog. It would be surprising indeed to find a law firm that does not have a website. With these new avenues of communication come new challenges. Chief among them: how does an attorney use social media and comport with his or her ethical obligations?

    1. Law Firm Websites

      According to legal marketing consultant Alyn-Weiss, "[l]aw firm websites are the single most effective marketing tool employed by corporate, transactional and defense firms." In their 2006 national survey of 119 firms, 82% had "received work directly or by referral during the past 24 months" from their website. (2) The American Bar Association reported in its 2008 Legal Technology Survey that 51% of solo practitioners in the U.S. and 77% of small firms (2 to 9 lawyers) have a website. (3) According to that same survey, 100% of U.S. firms larger than 50 attorneys reported having a website, and 97% of those with between 10 to 50 lawyers have one. (4)

      A law firm's website should be used to convey important information about the firm: who are the attorneys that practice in the firm, what kinds of results have the firm's attorneys achieved over time, what practice areas does the firm concentrate on, etc. When designing and maintaining a law firm website, those responsible should review and follow the rules that govern attorney advertising, particularly Rules 7.1 through 7.4 of the Model Rules for Professional Conduct. (5)

      What do these rules mean in regard to a law firm's website? Attorneys need to make sure that their websites do not contain material misrepresentations of fact or law. They cannot exaggerate their qualifications, lie about their experience or divulge information about their clients. They must avoid statements that may create an unjustified expectation about the results that the lawyer can achieve ("Hire us. We guarantee we will win your case!"). Care must be taken to avoid comparing the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated ("We are the best personal injury lawyers in the state!"). Since some states do not recognize certification of specialties or expertise, attorney websites should exercise caution before using the terms "expert", "specialist" or "certified". Attorneys should make sure that they do not indicate that the "specialize" in a particular area(s) of law.

      Most attorneys--and the law firms they work for--use websites to advertise their expertise. They often do this by listing representative clients and cases. However, as with all advertising, attorneys must be cognizant of their continuing duties to their clients. Even when the representation of a client is public knowledge, you should request the client's approval for any mention of the client or their matters on your website. (6)

      Lawyers must make sure that their websites contain legal disclaimers and a statement that the lawyer's website constitutes advertising material. (7) Such a disclaimer may look like the following:

      The information contained in this web site is intended to alert the reader to certain legal issues. The information is not intended as legal advice nor is it intended as a substitute for legal counsel. The information is not intended to create, and its receipt does not constitute, an attorney-client relationship. An attorney-client relationship does not exist until the client and the attorney explicitly so agree. We would be pleased to communicate with any interested persons by U.S. mail, telephone or e-mail. However, please remember that e-mail may not be fully secure and confidential and, therefore, you should avoid sending sensitive or confidential information by e-mail. The information contained in this web site is intended, but not promised or guaranteed, to be correct, complete, and up to date as of the time it is posted. Smith & Jones has made every effort to comply with all known legal and ethical requirements in publishing this site. The firm does not desire to represent persons based upon their review of any portions of this web site that do not comply with the legal or ethical requirements of the jurisdiction in which those persons reside or do business. This site contains links to other resources on the Internet. The purpose of these links is to help readers identify and locate resources which may be of interest to them. The inclusion of these links is not intended to imply or state that Smith & Jones endorses the linked entities or the content of those Internet sites. Smith & Jones has not tested any software or information which may be found on any of the linked sites and makes no representations regarding the quality or safety of any software found on the Internet. To the extent that any applicable ethical rules or laws require us to designate a principal office and/or a single attorney responsible for this World Wide Web site, Smith & Jones designates its Chicago, Illinois office and William Smith as the attorney responsible. This web site contains advertising material. The hiring of a lawyer is an important decision and should not be based solely upon advertisement. Before you decide, ask us to send you free written information about our qualifications. No warranties or guarantees of any sort are expressed, implied, or intended to be made by anything stated in this web site. Your use of this web site is at your own risk. The materials and information presented in this web site are not represented to be in accordance with any standard or requirement for information of the type presented. Smith & Jones, its attorneys and employees explicitly disclaim any responsibility, liability or damages resulting to any person, corporation, partnership, association or other entity resulting from the use of the materials and information presented on this web site. There are a few other points to keep in mind when dealing with attorney websites. Make sure you know the law of your jurisdiction regarding attorney...

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