9/26/11

Lawyers Should Know Ethics Rules and Social Media Policies for Blogs and Social Media (LinkedIn, Twitter, Facebook): Bar Regs and Other Social Media Guidelines

Individual bar associations across the country may or may not have regulations governing social media on their books: social media moves fast; the process of creating new rules to govern the practice of law within certain jurisdictions, not so much.

Obviously, lawyers should know their own bar rules and regulations, since they are bound by the ethical rules applicable to their jurisdiction(s).  That's not the only attempt at corralling online communications on the web, however. 

Social Media Policies and Guidelines Established for Private Companies and Public Entities

Attorneys should be aware that social media policies and online communication guidelines are being set up by many different types of entities now; savvy lawyers will be aware of those internet rules and regulations that may apply to certain clientele - as well as those of a competing law firm (e.g., the April 2011 social media guidelines established by Baker & Daniels).

For example, there are social media policies in place for the States of Delaware, Oklahoma, and North Carolina as well as big corporations like Ford Motor Company, FedEx, and Coca-Cola. Many more have been collected for review by Chris Boudreaux at SocialMediaGovernance.com, an excellent go-to site for those interested in learning more about the evolving trends in controlling social media today.

Lawyers and Ethical Rules, Social Media Guidelines

Does the attorney have to know these social media guidelines?  No, the lawyer will not be controlled by these policies; however, he or she should be able to explain why they disagree with a particular guideline if a client, potential client, or referral source asks about it after reading the lawyer's blog or social media tweets, pokes, etc.  Having access to this information when creating an internal set of online social media guidelines as part of law firm policy will also be very helpful. 

Does the lawyer need to know about ethical rules?  Yes, they do need to know what their local and state bar associations have defined as acceptable online communications.  Lawyers and law firms should be aware of the ethical rules and regulations that apply to their online activities: they may be disciplined for violating them (e.g., reprimand, suspension).

In some states, a broad brush is applied to blogs, Twitter accounts, and pages on LinkedIn, Facebook (and now Google+) where the governing body attempts to regulate these new marketing avenues using the same solicitation rules already in place for things like web sites and direct e-mail communications.  Comments and guidelines to existing ethical codes need to be monitored. 

For example, the State Bar of Texas has tried to keep up with the rapid changes in social media by issuing an "interpretive comment" to work in conjunction with Part 7 of the Texas Disciplinary Rules of Professional Conduct. 

Another example: the State Bar of Florida, which has passed specific regulatory language that applies specifically to the growing use of social media by attorneys and law firms.  Shown below is the Florida Bar's Guideline for Networking Sites, note how Florida goes into detail about such things as LinkedIn professional pages and Instant Messages: 


Guidelines for Networking Sites

Approved by The Standing Committee on Advertising (February 9, 2010)

Networking sites accessed over the Internet have proliferated in the last several years. There are numerous networking sites of various types. Some networking sites were designed for social purposes, such as Facebook, MySpace, and Twitter. Notwithstanding their origins as social media, many use these social networking sites for commercial purposes. Other networking sites are specifically intended for commercial purposes, such as LinkedIn. In a networking site, a person has the capability of building a profile that includes information about that person. That profile is commonly referred to as the individual’s “page.” The individual chooses how much of the information on his or her page, if any, is available to all viewers of the site. Some individuals provide access to no information about themselves except to those other individuals that are invited to view the information. Others provide full access to all information about themselves to anyone on the networking site. Others provide access to some information for everyone, but limit access to other information only to those invited to view the information. Additionally, some individuals set their pages to permit posting of information by third parties. Networking sites provide methods by which users of the site may interact with one another, including e-mail and instant messaging.

The Standing Committee on Advertising has reviewed the networking media, and issues the following guidelines for lawyers using them.

Pages of individual lawyers on social networking sites that are used solely for social purposes, to maintain social contact with family and close friends, are not subject to the lawyer advertising rules.

Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set forth in Rule 4-7.2. Regulations include prohibitions against any misleading information, which includes references to past results, promises of results, and testimonials. Regulations also include prohibitions against statements characterizing the quality of legal services and visual or verbal portrayals that are false, misleading, manipulative, or confusing. Lawyers and law firms should review Rule 4-7.2 in its entirety to comply with its requirements. Additional information is available in the Handbook on Lawyer Advertising and Solicitation on the Florida Bar website.

Invitations sent directly from the site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer. Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer. Direct e-mail must comply with the general advertising regulations set forth in Rule 4-7.2 as well as additional requirements set forth in Rule 4-7.6(c). Information on complying with the direct e-mail rules is available in the Handbook on Lawyer Advertising and Solicitation and in the Direct E-Mail Quick Reference Checklist on the Florida Bar website.

Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page. If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.

Finally, the Standing Committee on Advertising is of the opinion that a page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.

In contrast with a lawyer’s page on a networking site, a banner advertisement posted by a lawyer on a social networking site is subject not only to the requirements of Rule 4-7.2, but also must be filed for review unless the content of the advertisement is limited to the safe harbor information listed in Rule 4-7.2(b)(1). See Rules 4-7.6(d), 4-7.7(a)(2) and 4-7.8(a).

[Updated by the Standing Committee on Advertising on May 11, 2010.]
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