One of our favorite topics here at the Commission is the effect of technology on our profession and on professionalism. Many of the blog posts at the Commission share a common theme: The rewards of using technology greatly outweigh the risks, yet the risks can be substantial and shouldn’t be overlooked.
Continuing that theme today, we look at attorney advertising and solicitation in the digital age. Facebook (as well as Twitter, Instagram, etc.), LinkedIn, text messages, chat rooms, firm websites and Avvo all pose risks for lawyers who may be inappropriately or even inadvertently advertising to or soliciting clients.
(By the way, to clarify terms, advertising informs the general public of available legal services, whereas soliciting directly targets a prospective client. Generally speaking, advertising is permitted; solicitation is not.)
Law firms rely on advertising to grow their businesses; however, law firms, with good reason, are held to much higher ethical standards in their communications than other commercial enterprises. The rules regarding solicitation and advertising can be found in both the Model and Illinois Rules of Professional Conduct at 7.1 through 7.4.
Generally, the ethics rules apply no matter the mode of communication—written, recorded or electronic. Social media and the variety of electronic communication have meant that opinions and rules have continued to evolve. Clear opinions have been handed down regarding some issues—e.g., back in 1997, Illinois Ethics Opinion 96-10 explained that legal discussions in chat rooms are real-time electronic solicitations, and thus must be preceded and followed by the phrase “Advertising Material”as per Rule 7.3(c). For other issues, including those briefly highlighted below, the answers haven’t yet emerged or become clear.
Rule 7.3(a) prevents lawyers from soliciting prospective clients for pecuniary gain. Exceptions are made for the solicitation of other lawyers, family and those with either close personal or prior professional relationships with the lawyer. Social networks can muddy the waters of “close personal relationships”though. Simply being a Facebook “friend”or LinkedIn contact might not create the type of close personal or prior professional relationship that falls within the exception; tread carefully with these loose connections as we wait for a clarifying court or ethics opinion.
Offering legal advice to a social media “friend” who is not actually “close”and “personal” could be viewed as “real-time electronic contact,”and thus improper solicitation without the Rule 7.3(c) “Advertising Material”notice. Worse, if that “friend”lives outside the jurisdiction in which the chatting lawyer is licensed to practice, that lawyer could be disciplined for unauthorized practice of law. Adding a disclaimer about your intent to inform rather than advise is an option, but it will only hold as a defense based on the content of the discussion.
Though most states haven’t issued many opinions or disciplinary rulings regarding social media advertising and solicitation, some states may follow Florida in drafting guidelines for advertising and soliciting on social media sites. But until states clarify their approaches, the best bet is to play it safe on social media by avoiding any language that could be construed as solicitation.
Often, a text message conversation is so fluid that it seems like it’s happening in real-time. But is it “real-time electronic communication,” prohibited by Rule 7.3(c)? According to at least one state, the answer is no.
On April 5, 2013, the Ohio Supreme Court’s ethics board ruled that text messages are a permitted form of advertising. The board believed text messages are more similar to e-mails than chat rooms, and texting thus falls under Rule 7.2’s permitted advertising categories of written and electronic communications. A lawyer advertising via text message must, of course, abide by the other rules regarding advertising and solicitation, including limitations on soliciting people known to be in need of legal services.
We found no other states that have made text message rulings; however, in the 2009 Ninth Circuit case Satterfield v. Simon & Schuster, Inc., the court decided that the Telephone Consumer Protection Act prevents companies from using automatic telephone dialing systems to send advertisements to consumers. So law firms would be advised not to send prospective clients “text blasts.”Also, in contrast to Ohio’s opinion, the court found text messages to be akin to telephone calls, which could categorize them as solicitation. Obviously, the future of text message advertising for law firms is murky, but the closer texting comes to reaching the status of “real-time”communication, the more likely it may run afoul of the solicitation rule.
The Firm Website
Lawyers aren’t expected to have time to become web design whizzes, and web designers aren’t expected to know the advertising and solicitation rules binding lawyers. So it is critical that web designers hired to create a law firm’s website, which most states consider a form of advertising, be informed of the land mines of legal advertising ethics. A few examples:
- It’s tempting to describe the firm as “the best” at something, but that could violate Rule 7.1’s prohibition against “false or misleading” claims.
- A lawyer can’t be identified as “certified,” a “specialist” or an “expert,” except when such recognition has been bestowed upon them by an agency or organization, as per Rule 7.4. In Illinois, even when that recognition has been awarded, the reference to it must “state that the Supreme Court of Illinois does not recognize certifications of specialties in the practice of law.” Of course, the rules in other states vary.
- Firm websites should have disclaimers stating that the information on the site is merely legal information, not legal advice. Websites must also include the name of the attorney responsible for the advertising on every page, the firm’s location and a clear indication of the jurisdictions in which the firm’s lawyers are licensed to practice.
- Of course, all these same points apply to firm and individual lawyers’ Facebook, LinkedIn and other pages as well.
Avvo, which allows anyone to rate lawyers and creates a final rating based on an undisclosed calculation, has been a boon to many firms’ client lists, as long as the client is making first contact of course. Other websites, like Super Lawyers and Martindale offer similar services.
Ratings and testimonials on Avvo and comparable sites pose problems in several states, especially those, like South Carolina, which explicitly prohibit website testimonials. Also, those who quote prices for certain services should update their profile often so as to avoid posting “misleading or false”advertisements in violation of Rule 7.1
What about those ubiquitous “endorsements”on LinkedIn? The same “misleading”information problem arises when a mere acquaintance “endorses”a skill on LinkedIn; however, Michael Downey, a member of the ISBA Standing Committee on Professional Conduct, has said that truthful endorsements—i.e., ones from people with actual knowledge of the lawyer’s skill —are permissible. Accordingly, some lawyers have taken down their endorsements, while others have chosen not to accept all of the endorsements that they receive.
Advancing technologies continue to open new doors for lawyers, but we must be vigilant to ensure ethical compliance. Given the rate of technological change, once these questions are finally answered, new ones will have cropped up. Keeping up with the ethical and regulatory framework will be an ongoing challenge, but it’s a challenge that lawyers can’t afford to avoid.
John Edwards, our intern from Loyola University Chicago School of Law, contributed to this post.