Ethical Concerns for
Social Media and Marketing

In today‘s virtual world, lawyers are taking advantage of the newest networking sites and social media apps to drive client and career development. The internet and social media sites make accessibility pretty much effortless and there are countless benefits from a marketing and economical standpoint. The ability to connect almost instantaneously with the click of a mouse has revolutionized how the legal profession can present themselves to the public. But before you have your professional headshot done for your social networking profile, or marketing campaign, you may want to take some time to review the Kentucky Supreme Court Rules relating to attorney advertising and the AttorneysAdvertising Commission (AAC) Regulations, both which are available on the KBA website

The Kentucky Supreme Court Rules relating to attorney advertising are SCR 3.130(7.017.60), and these Rules apply to communications about legal services on paper, online, and by word of mouth. Facebook, Twitter, LinkedIn, and Instagram are all relatively new, but the Model Rules of Professional Conduct are not. These Rules not only apply to traditional methods of marketing, like television or newspaper advertisements and likewise, the advertising Rules have been amended in recent years as lawyers change how they advertise services. You can access your social media platform anytime and anywhere through your handheld device. You can easily post a comment or blog in a few seconds without realizing this could be considered advertising of your services. These sites may also have sections for client testimonials or reviews. Attorneys must also be careful and make sure these reviews do not contain references to specific cases or set expectations that the attorney can duplicate results for other clients

Social media sites make it very easy for attorneys to violate the rules of professional conduct regarding legal services. You are just sending a new frienda quick message letting them know what you do, right? SCR 3.130(4.5), however, prohibits a lawyer from soliciting professional employment through in person, live telephone, or real-time electronic means, if a significant motive for the communication is the lawyer’s pecuniary gain, unless a specific exception applies. Real-time electronic means could include instant or direct messages and email. In fact, under SCR 3.130(4.6), if a lawyer illegally or unethically solicits a client, he or she will be required to waive and forfeit all fees generated from that transaction.

Social networking sites can also make it very easy for lawyers to violate Model Rule 7.4, which pertains to fields of practice and specialization. LinkedIn for instance allows for someone on the platform to endorse a lawyer for skills in certain areas based on the profile. These could be skills in areas that the attorney does not practice and if left on their profile could be considered a mis representation of their expertise. The thing to remember is that an attorney must police their own online profiles and remove any endorsement or testimonial that is not accurate. See AAC Regulation 1(D) for specific requirements relating to testimonials

While there are numerous benefits associated with social media, one must be cautious and leave time for reflection before making a post or comment. Avoid posts or blogs that reference results on behalf of clients, to avoid unjustified expectations. Monitor your profile for endorsements or recommendations to avoid misrepresentations. Review the AAC Regulations and the Rules relating to attorney advertising. Contact your Ethics Hotline representative if you have any questions about your intended conduct, or submit your advertisement to the AAC for review. It could be the difference between the next great marketing campaign and a serious ethics violation.

This article was written by Joe Davis.

 

Joe Davis is the Director of Cyber Liability for Houchens Insurance Group.  His focus is the development and implementation of Risk Management Programs for Cyber Liability exposures.  Joe advises on best practices as well as reviews carrier forms to negotiate enhancements and endorsements.  He works within various industries including, finance, retail, healthcare, education, construction and manufacturing to identifying risk factors and assist in incident response processes.  He earned his J.D. degree from Nashville School of Law.