The District of Columbia Bar Issues Social Media Guidelines

The District of Columbia Bar is the most recent state bar to issue social media guidelines.

Acknowledging the ubiquitous nature of social media, the D.C. Bar joins the growing chorus of state advisory opinions that suggest that competence requires an understanding of social media.

The D.C. Bar opted to discuss social media in two separate opinions, one opinion focused on marketing and the other opinion dealing with the use of social media in the practice of the law.

The D.C. opinions echo other state guidance in applying the traditional professional conduct standards to the use of social media. In other words, attorneys should employ social media to enhance effective representation without crossing the lines into pretexting or other impermissible conduct. D.C. also adds insight into the impact may have in a regulatory or transactional practice. In the marketing arena, an attorney must adhere to the attorney advertising rules and diligently monitor her social media presence for accuracy and compliance with the rules.

To read the D.C. Opinions, click here and here.

California Releases Final Advisory Opinion on Lawyer Blogs

Recently, the California Standing Committee on Professional Responsibility and Conduct finalized its opinion that analyzes whether attorney-authored blogs should be governed by the advertising regulations. The Committee concluded that blogs should be governed as attorney advertising if the blog directly or indirectly expresses the attorney’s availability for professional employment. Thus, a blog that is a part of an attorney’s professional website or a firm’s professional website is governed by the advertising guidelines.

However, the opinion distinguishes “stand-alone” blogs, which it defines as “a blog that exists independently of any website an attorney maintains or uses for professional marketing purposes.” An attorney may maintain a stand-alone blog that discusses legal topics “within or outside the authoring attorney’s area of practice.” The blog will not be subject to the advertising rules unless the blog “directly or implicitly expresses the attorney’s availability for professional employment.”

Interestingly, a stand-alone blog that discusses non-legal topics (e.g. travel and cooking) is not subject to the advertising rules, even if the blog provides a link to the lawyer’s professional website. “However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.”

To access the final opinion, click here.

California Interim Opinion Provides Guidelines For Attorney Bloggers

Lawyers who maintain non-legal blogs may preemptively celebrate that their recipe and music blogs would not be considered “communications” subject to California’s attorney advertising rule 1-400 even if they link to their professional law firm pages according to The State Bar of California’s second Proposed Formal Opinion Interim. Still, the generous opinion draws limits, as “extensive” or “detailed” information that identifies the blogger as an attorney and announces his availability for professional hire will trigger the rules, as such information is a communication in itself.

Unsurprisingly, a blog that is built into the lawyer’s or law firm’s professional website is as much subject to the advertising rules as is the firm’s website. However, an attorney’s individual blog, even if it discusses legal topics is not a communication for purposes of the advertising rules unless it implies that the attorney is available for legal employment. This implicit hint can be as subtle as describing the legal services or detailing case results.

Overall, this second proposal focuses on the importance of First Amendment protection to avoid chilling speech on legal commentary, even though the California Bar committee acknowledges that these blogs are motivated at least in part by business development concerns. By interpreting blogs as non-commercial speech where appropriate, the opinion hopes to serve as guidance rather than a strict conversation-chiller.

Read the new opinion here.

Rhode Island Approves Attorney’s “Winning” Advertisement

A lawyer whose last name rhymed with win may use an advertisement that proclaims “Win with [insert attorney’s rhyming last name].” Rhode Island Supreme Court’s Ethics Advisory Panel (“The Panel”) Opinion 2015-03 held that the slogan is not misleading, and a reasonable person would not be hoodwinked into believing the lawyer will always succeed; however, it should be noted that the inquiring attorney indicated the advertisement would include the disclaimer “Prior results do not guarantee similar outcome.” Moreover, the attorney plans to include similar language in his retainer agreement where a client will initial that statement.

The Panel framed the issue as “whether there is a substantial likelihood that the proposed rhyming slogan…would lead a reasonable person to form an unjustified expectation about the results that the inquiring attorney would achieve.” The Panel found that the slogan would not be misleading and based its decision on Rhode Island’s Rule 7.1: Communications Concerning A Lawyer’s Services and the 2007 amendments to the rule.

In 2007, Rule 7.1 was amended, and new comments explaining misleading statements added the qualifiers “substantial likelihood” and “reasonable person” to Comments [2] and [3] of the rule.

Comment [2] states:

A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

Comment [3] states:

An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case . . .

The Panel explained that in today’s world, advertising is found everywhere—billboards, print, television, radio, and the Internet. Thus, “reasonableness” is the standard used to determine whether an advertisement is misleading. The Panel found the attorney’s advertisement that cleverly rhymes his last name with “win” to be reasonable in light of his disclaimers and the public’s constant exposure to all manner of advertising in today’s digital world.

For more information on the advisory opinion click here.

Is Your LinkedIn Profile Attorney Advertising?

Does an attorney’s LinkedIn profile necessarily constitute attorney advertising?

In analyzing whether a LinkedIn profile is advertising, The Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion 2015-7 (“Opinion”) applied the New York Rules of Professional Conduct’s definition of an advertisement, which is “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”

The Committee concluded that if the primary purpose of an attorney’s LinkedIn profile is not to attract new clients, it is not advertising. So, how does an attorney define primary purpose? The Opinion explains that if the following criteria are met then a LinkedIn profile is advertising:

  1. It is communication made by or on behalf of the lawyer;
  2. The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  3. The LinkedIn content relates to the legal services offered by the lawyer;
  4. The LinkedIn content is intended to be viewed by potential new clients; and
  5. The LinkedIn content does not fall within any recognized exception to the definition of attorney advertising

The Opinion’s elaboration on each of the criteria may be found here.

So what do you do if your LinkedIn profile is considered an advertisement?

The Committee noted that a LinkedIn profile that constitutes advertising must comply with all of New York’s attorney advertising rules, including, but not limited to, the inclusion of the label “Attorney Advertising” legibly placed on the profile along with the name, principal law office address, and telephone number of the attorney. Additionally, the advertisement must not be deceptive or misleading.

The Committee also cautioned attorneys to personally “pre-approve” their advertisements, and reminded them that LinkedIn is considered to be a “computer-accessed communication” and thus must be retained for at least one year in accordance with New York’s attorney advertising rules.

The Opinion is novel in that it is the first ethics advisory opinion to conclude that all attorney LinkedIn webpages (or other social media profiles) are not necessarily advertisements. It will be interesting to see whether other bar associations and state bars follow New York City’s lead.