Social media can be useful for getting a practice’s name out there and helping potential clients find you. But there are legal and ethical issues raised by use of social media. Federal and state laws are also implicated when a law office decides to promote its services whether it be through establishing a website or participating in forums such as Facebook, LinkedIn or Twitter. This article will focus on some critical dos and don’ts implicated by federal and state laws addressing advertising and attorney ethics.
Do be truthful
When a law office, or any business, establishes a website or other online presence, one purpose is usually to promote the services available.
Advertising and promotion raise potential for scrutiny from the Federal Trade Commission (FTC) and state agencies as well as attorney ethics issues.
First, the ABA Model Rules of Professional Conduct, Rule 7.1 prohibits false or misleading statements about a lawyer’s services. Many state ethics rules include similar prohibitions. Further, federal and state laws protect consumers from misleading advertising, misrepresentations about goods and services and unsubstantiated claims. Even state laws addressing lawyers may include provisions that prohibit advertising or promotion of professional services that may be false, misleading or deceptive.
For example, California’s Business and Professions Code, Section 6157.1 prohibits any advertising by attorneys that contains any “false, misleading, or deceptive statement or omit[s] … any fact necessary to make the statements made, in light of the circumstances under which they are made, not false, misleading, or deceptive.” Section 6157.2 adds that lawyer advertisements can’t make “[a]ny guarantee or warranty regarding the outcome of a legal matter as a result of” the lawyer’s representation.
Therefore, be wary of how your law office highlights or promotes its services on a professional website or on social media such as Facebook, Twitter, LinkedIn and other platforms.
“What is paramount is being honest and truthful,” cautions Peter T. Berk, a Chicago-based social media and advertising attorney. Berk advises all his clients to ensure “if you are going to post something, make sure it’s truthful.”
While the goal of marketing and advertising is to highlight the positives and motivate prospective clients to use your firm’s services, you must be careful how you do that and the words you choose. Your materials “can’t be half true or even creatively spin things,” says Berk.
Don’t assume testimonials or endorsements are okay
Happy clients satisfied with the outcome you helped them achieve who are willing to proclaim how competent your lawyers are and how wonderful and efficient the staff are can be great “press” for your law office. But think twice about including those types of references formally on your website or social media platform. The FTC has guidelines on the use of testimonials and endorsements. The need to avoid misleading consumers is a primary concern.
“The FTC wants it to be clear that people who provide endorsements must disclose any interest they have in your law office,” adds Berk. Not only the FTC but state laws as well often require that, like any advertisement, a testimonial is not misleading or deceptive.
Additionally, state attorney ethics rules also often address endorsements and place conditions or limitations on their use. For example, New York Rules of Professional Conduct, Rule 7.1(c) prohibits use of paid endorsements or testimonials unless payment is disclosed, but does allow endorsements or testimonials of clients or former clients provided a client with a pending matter consents to that use of the endorsement or testimonial.
If you do use testimonials, you also want to make sure they aren’t misleading about services and potential results. Be sure to note that because a particular client had a particular result doesn’t mean others will too. Many state ethics rules will expressly require such disclaimer. In fact, New York ethics rules expressly require inclusion of the following statement: “Prior results do not guarantee a similar outcome.” If you fail to provide that disclaimer in connection with the testimonial, it can create misrepresentations that the FTC and state agencies will also be concerned about, says Berk.
Do consider state ethics rules on attorney advertising
You also need to be aware of how you word even truthful statements about your law office and its lawyers. Although ethics rules are generally similar across the states on the big issues, there are some nuances that vary by state and these can affect what you can say in your advertising and even the particular the words you use. For example, some states may prohibit you from stating your lawyers are “experts” in or “specialize” in a topic area or are “certified” in any particular area of practice, even if they do have experience in that topic.
For example, New York’s Rules of Professional Conduct, Rule 7.4 says a lawyer cannot be said to specialize in an area of law or be labeled a specialist in the firm’s advertising. If the lawyer is recognized by an organization as certified or a certified specialist, any statement to that effect must also have a disclaimer that such organization isn’t affiliated with any government authority.
Additionally, in the California Rules of Professional Conduct, Rule 4-100 indicates a law firm can only advertise that a member is a “certified specialist” if that member holds a current certificate as a specialist issued by a Board of Legal Specialization or State bar-accredited entity that designates specialists according to standards adopted by the state bar’s board of governors.
Similarly, Nevada Rules of Professional Conduct, Rule 7.4 allows use of the term specialist but only if certified as a specialist in the area by an organization approved according to the Rule 7.4A by the board of governors.
So be careful how you describe your lawyers’ individual expertise. Check your local rules of professional conduct and any comments interpreting them to see what wording might be forbidden in your state.
State ethics rules may also include other requirements or limitations for attorney advertising such as requiring specifically worded disclaimers, record retention requirements or even registration requirements. For example, Nevada Rules of Professional Conduct, Rules 7.1(m) and 7.2A require lawyers file with the State Bar “[a] copy or recording of an advertisement or written or recorded communication” and keep a copy in their own files for four years after the last time it is disseminated. Records must also indicate where and when the ad was used.
Berk warns that even lawyer-written blogs could be considered advertising, subject to the ethics rules’ restrictions and conditions on advertising. For example, blogging about your success in a case could be considered advertising subject to requirements of ethics rules. In fact, the ABA has reported that one court found a Virginia attorney’s blog posts about successful cases constituted advertising and were subject to Virginia ethics rules requiring disclaimers.
Do add disclaimers
When your law office establishes a website, be sure to set some boundaries and limits for individuals using that website. To do that, you should have a terms-of-use policy available on the website which includes disclaimers about the purpose of the site and what users can and can’t do on the site or expect from the site.
For example, according to IT lawyer Lisa W. Clark, of Duane Morris LLP in Philadelphia, such disclaimers should include notice to users that information on the site or social media platform presented by the office doesn’t create an attorney-client relationship or constitute legal advice for a specific case.
It’s also good to advise that your law office has no control over third party links to the law office website. Clark warns that a third party could link to your office’s website or make representations about the practice. You don’t want to be misleading visitors, so emphasize that the law office has no control over third parties that link to the site, she says.
Consider adding a banner at the bottom or top of your website, advises Clark, to make certain essential disclaimers immediately prominent to all visitors to your site. And, remember to check your local professional rules of conduct, which may require specific disclaimers be included on your site.
Don’t assume it’s okay to do something you see other offices doing
Don’t assume that something you see another law office doing online—either on their website or on a social media platform such as Facebook or LinkedIn—is okay for your office to do too, warns Clark. “Every case is different,” she explains. Just because another practice is providing something on their website or undertaking some type of marketing or promotional activity, doesn’t mean it’s safe and won’t cause potential legal problems for your law office. Laws vary from state to state and application of those laws depends on the facts and circumstances. The underlying facts and circumstances may not be the same for your office.
RESOURCES
ABA Model Rules of Professional Conduct, Rule 7.1
California Business and Professions Code, Section 6157
Nevada Rules of Professional Conduct, Rules 7.1 and 7.2
New York Rules of Professional Conduct, Rule 7.1