THE ETHICAL IMPLICATIONS OF SOCIAL MEDIA Brian C. Focht Stiles Byrum & Horne, LLP www.thecyberadvocate.com

THE ETHICS OF SOCIAL MEDIA PART 2: MARKETING YOUR PRACTICE ON SOCIAL MEDIA

MARKETING YOUR FIRM VIA SOCIAL MEDIA Remember: This. Is. Advertising.

MARKETING YOUR FIRM VIA SOCIAL MEDIA NC RULES OF PROFESSIONAL CONDUCT Advertising: 7.1 Communications Concerning Lawyers Services 7.2 Advertising 7.3 Direct Contact with Potential Clients 7.4 Communication of Fields of Practice and Specialization

MARKETING YOUR FIRM VIA SOCIAL MEDIA NC RULES OF PROFESSIONAL CONDUCT Other important provisions: 1.1 Competence 1.6 Confidentiality 1.9 Duties to Former Client 1.18 Duties to Prospective Client 3.6 Trial Publicity

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Blog/Social Media Page/Post/Message Applicable Rule(s): 7.1 To Comply: Cannot be false or misleading If its unethical in person, its unethical on Social Media MUST include all necessary facts 2000 FEO 1 Comparisons with other attorneys require factual basis

MARKETING YOUR FIRM VIA SOCIAL MEDIA Related Issues: Marketing Videos

MARKETING YOUR FIRM VIA SOCIAL MEDIA Related Issues: Marketing Videos

MARKETING YOUR FIRM VIA SOCIAL MEDIA Related Issues: Marketing Videos Ghostwriting

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: A client posts a testimonial on your page Applicable Rule(s): 7.1 & 7.2; 2012 FEO 8 To Comply: Review every testimonial, edit or remove where necessary/possible ALWAYS include a disclaimer where possible 2012 FEO 1 If you have editorial control, post must comply with the rules

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: A client posts a testimonial on your page Applicable Rule(s): 7.1 & 7.2; 2012 FEO 8 To Comply: Review every testimonial, edit or remove where necessary/possible REMEMBER: Your clients likely dont know the rules. Make sure their endorsement is in context, or it might be considered misleading! 2012 Formal Ethics Opinion 8

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Recommendations & Endorsements Applicable Rule(s): 7.1 & 7.2 To Comply: No astroturfing, must be based on actual experience. Just like testimonials, recommendations & endorsements must meet ethical rules if you have editorial control

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Recommendations & Endorsements Applicable Rule(s): 7.1 & 7.2 To Comply: No astroturfing, must be based on actual experience. Dont recommend a lawyer on quid pro quo basis Dont recommend someone you dont know No Astroturfing

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Direct messaging prospective clients Applicable Rule(s): 7.3 To Comply: Dont do on Social Media what you couldnt do in person If theyre already a friend or connection, its likely that direct solicitation would be permitted HAS NOT BEEN ADDRESSED IN NC!

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Direct messaging prospective clients Applicable Rule(s): 7.3 To Comply: Dont do on Social Media what you couldnt do in person Although not yet addressed, Tweeting your availability to someone just in an accident is probably solicitation

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Direct messaging prospective clients Applicable Rule(s): 7.3 To Comply: Dont do on Social Media what you couldnt do in person Hypothetical: Youre a personal injury attorney, and you just heard about a bad train accident. Is it unethical to tweet about your services using a hashtag related to the crash? What about a YouTube video with crash- related tags for searches?

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Listing skills, experience, practice areas Applicable Rule(s): 7.4 To Comply: Dont use specialize; be very conscious of how your profile can be read REMEMBER: Even if lawyers can specialize, law firms cannot LinkedIn Company pages should NEVER list specializing If you list skills, edit recommendations and testimonials that overstate or incorrectly describe your areas of expertise

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Listing skills, experience, practice areas Applicable Rule(s): 7.4 To Comply: Dont use specialize; be very conscious of how your profile can be read If youre relying on a disclaimer, make sure it actually disclaims Disclaimer must be clear and unambiguous Must be located where visitors are likely to see it

MARKETING YOUR FIRM VIA SOCIAL MEDIA Other Jurisdictions: NY State Bar Association Opinion 972 Companies may not list practice areas in any section titled Specialties, even if they have no control over title (LinkedIn Company Pages) Philadelphia Bar Association Opinion 2012-8 Attorneys use of the Skills & Expertise endorsements on LinkedIn permissible, provided no further representation regarding proficiency so as to indicate specialization is made

MARKETING YOUR FIRM VIA SOCIAL MEDIA Responding to Negative Reviews One day, you see that a former client posted this: [Your law firm] is terrible, I wouldnt recommend them to anyone. They took $2,000 up front, knowing full well that North Carolina law prevented me from bringing a case. Not only are they refusing to return the $2,000, they want another $1,000! Theyre liars who just want your money.

MARKETING YOUR FIRM VIA SOCIAL MEDIA Heres how an attorney responded in real life: This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Responding to a disgruntled client Applicable Rule(s): 1.6 & 1.9 To Comply: Do not reveal client confidences; do not disadvantage former client by your reply Remember, a response is not always necessary! If posted on a review site such as AVVO or Google+ that you cannot edit, contact the service providers

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Responding to a disgruntled client Applicable Rule(s): 1.6 & 1.9 To Comply: Do not reveal client confidences; do not disadvantage former client by your reply DO NOT REVEAL CONFIDENCES Issue of the extent of information youre allowed to reveal, even if the former client opens the door is not clear Rule 1.6(b)(6) allows attorneys to respond to allegations in any proceeding concerning the lawyers representation. (emphasis added)

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Blogging/Posting about your cases Applicable Rule(s): 1.6, 1.9, 3.6 To Comply: Do not publish confidential info; do not post comments that would be unethical in a newspaper ** This is currently a hotly debated issue! ** Do not publish: Clients names Information that reasonably lead to clients identification Anything written while youre frustrated/upset!

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Blogging/Posting about your cases Applicable Rule(s): 1.6, 1.9, 3.6 To Comply: Do not publish confidential info; do not post comments that would be unethical in a newspaper Be careful about Social Media that include your location in your posts! Remember youre responsible for your staff too!

MARKETING YOUR FIRM VIA SOCIAL MEDIA Situation: Answering legal questions via SMS Applicable Rule(s): 1.6 & 1.18 To Comply: Use a good disclaimer; discourage disclosure of confidential info in online discussion Remember: Establishing attorney-client relationship is based on the reasonable expectations of the prospective client! Even an excellent disclaimer doesnt override your actions Additional Guidance: 2011 FEO 8

MARKETING YOUR FIRM VIA SOCIAL MEDIA BEST PRACTICES: 1. Remember: THE RULES STILL APPLY 2. Understand your SM tools before using them a) Reach, strengths, and weaknesses b) Learn how to use them effectively 3. Create a Social Media Strategy for your firm 4. Name or hire a Social Media Manager

THE ETHICAL IMPLICATIONS OF SOCIAL MEDIA Brian C. Focht Stiles, Byrum & Horne, LLP bfocht@sbhlaw.net www.thecyberadvocate.com