publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/221442
SOCIAL MEDIA AND ATTORNEY ADVERTISING: STILL TRYING TO GET IT RIGHT as a "specialist" or "expert" usually is prohibited in states that offer some type of bar-recognized specialization in given areas. The New York opinion, while permitting a lawyer or law firm to identify an area or areas of practice on LinkedIn, restricts attorneys from identifying themselves as specialists; in New York (and many other states), only a lawyer who "is certified as a specialist in a particular area by a private organization approved for that purpose by the American Bar Association, or by the authority having jurisdiction over specialization under the laws of another state or territory" may hold herself out as a specialist in a designated area of law, according to Rule 7.4(c) of the New York Rules of Professional Conduct. Here's the trouble: The New York State Bar was attempting to fix a problem that no longer existed. In March 2012, LinkedIn deleted the "Specialties" option entirely, replacing it instead with the "Skills and Expertise" section for individual attorneys. The New York State Bar — with all its resources and attorney talent — issued an ethics ruling that was obsolete by almost a year and a half. This wasted effort underscores one of the key problems with attempts to regulate lawyer advertising via social networks: All too often, state bar advertising regulators and ethics bodies exhibit either a fundamental lack of understanding of technology or they purport to offer guidance at a pace that is glacial compared to the pace of technological innovation. PRACTICAL APPROACHES A much more practical approach to attorney advertising on social media can be found in Opinion 2012-186 from California's Committee on Professional Responsibility and Conduct (COPRAC), which framed the question as follows: "Under what circumstances would an attorney's postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?" Applying California's existing rules on attorney advertising to social media activity, COPRAC found they would be applicable as long as the posts satisfied the definition of "communication" that was "made by or on behalf of a member concerning the availability for professional employment … directed to any former, present or prospective client." The opinion went on to illustrate its conclusion with helpful hypotheticals, drawing a distinction based on whether employment was being solicited or not by the content of the posts itself. So, while an otherwise innocuous attorney tweet or Facebook post about a victorious day in court would not constitute an advertisement, adding comments about the lawyer's availability for future matters like "Who's next?" or "Contact me if you have a similar legal issue" transforms the communication into advertising that must pass official muster. Social networking use, both society-wide and among members of the legal profession, is only going to increase. So too will attorneys' use of these platforms as marketing tools. Consequently, it's more important than ever for state bar advertising authorities and ethics panels to provide effective, informed and timely guidance that adapts existing rules to changes in technology that will continue to emerge. Do your research, and leverage social media to advertise your expertise in ethical ways. John Browning is the founding partner of the Dallas, TX office of Lewis Brisbois Bisgaard & Smith, where he handles civil litigation in state and federal courts in areas ranging from employment to intellectual property and media law. John has extensive trial, arbitration and summary judgment experience. He is the author of the book "The Lawyer's Guide to Social Networking, Understanding Social Media's Impact on the Law." John has been quoted as a leading authority on social media and the law by various publications, and he is a recurring legal commentator for the NBC and FOX news stations in Dallas. Contact him at john.browning@lewisbrisbois.com.