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 reprimanded publicly by the state's Supreme Court for "falsely posing as a former client of opposing counsel and posting a negative review on a website." If lawyers are still struggling with the ethical boundaries of advertising in the digital age, so too are state bar advertising review boards and ethics authorities. Consider, for example, how advertising via social media fared in three states: In November 2010, the Kentucky Bar Association proposed a regulation that would bar attorneys from attempting to solicit clients via social networking platforms unless the social media content was submitted to the bar's Advertising Commission along with payment of a $75 filing fee. The proposed rule, AAC Regulation No. 17: Social Media SCR 3:130-7.020(1)(j) states, in part, that "Communications made by a lawyer using social media websites such as MySpace and Facebook that are of a non-legal nature are not considered advertising," while those of a "legal nature" (any information containing the lawyer's name or other identifying information) would be. The proposed regulation was criticized as a heavy-handed response to Louisville attorney Christian Mascogni who used social networking outreach to boost his DUI defense business — including a Facebook post to over 2,000 "friends," inviting partiers in town for Breeder's Cup weekend to call him if they found themselves in jail. Other commentators criticized the proposed regulation's vagueness and possible unconstitutionality — concerns that could explain why the measure has yet to be adopted officially. Florida is another state embroiled in controversy over its efforts to regulate lawyers' social media presence. The Florida Supreme Court approved the latest overhaul of the state's attorney advertising rules in May 2013, including new rules stating that while attorneys may tweet, such messages are still considered advertising and must provide the required geographic disclosure of the lawyer's office location. And while attorneys are welcome to use LinkedIn, they must refrain from including information forbidden by Florida Bar rules, including 94 percent of associates use LinkedIn, while growing numbers are leveraging sites like Instagram, Google Chat and Pinterest for marketing. third-party testimonials, misleading information about past results or "statements characterizing skills, experience, reputation or record unless they are objectively verifiable." This last aspect can trip up lawyers who improperly identify themselves as being "specialists" or "experts" on a site such as LinkedIn, despite strict rules in states like Florida that provide board certification opportunities in designated specialties. Such standards require lawyers to police what information third parties might post about them to ensure it complies with the advertising rules. In addition, since content on a lawyer's social networking page — at least one that discusses the attorney's profession and isn't purely personal — is considered advertising just like website content, Florida cautions lawyers about inappropriate or unprofessional content. The Florida Bar, which is currently involved in two disciplinary investigations regarding LinkedIn profiles, has already discussed with lawyers issues of "inappropriate" content. In New York, a recent ethics opinion highlights one of the central challenges inherent in any attempt to regulate attorney advertising via social media — keeping pace with the technology itself. On June 26, 2013, the New York State Bar Association issued Ethics Opinion 972, responding to an inquiry about whether a lawyer or law firm can list various services on LinkedIn under the section labeled "Specialties." As previously noted, a lawyer representing himself