Ali’s decision to accept the judge’s friend request created some excellent commentary both on our blog page and on our Facebook page. Keep the comments coming. Ali’s new at this – she needs all the help she can get.
Ali decides to accept the judge’s request. After she does so, she reviews her list of friends. She’s up to fifteen hundred! She’s fairly certain at least some of them need legal help. She wants to post things to her Timeline like, “I’ve won every case I’ve tried!” and “I passed the bar! Call me for a free consultation!” Ali wants to know whether her Facebook posts would violate the Rules of Professional Conduct.
If Ali’s an Illinois lawyer, she’ll need to take a look at Rules of Professional Conduct 7.1 and 7.3. Ali’s first post wouldn’t pass muster under Rule 7.1. The rule states: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” “A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” It’s misleading to state that Ali has won every case she’s tried since she’s never tried a case.
Ali’s second post, “I passed the bar! Call me for a free consultation!” brings into play Rule 7.3. A Facebook post could constitute “real-time electronic contact” solicitation which is generally prohibited by Rule 7.3(a). But Ali’s soliciting her Facebook friends. She could argue that Facebook friends fall under the Rule 7.3(a)(2) “close personal … relationship” exception. Moreover, if the Facebook post is not “real-time electronic contact” and simply an “electronic communication”, then the Rules generally allow the solicitation. However Ali would have to say “Advertising Material” at the beginning and end of all of her communications, unless again, every one of her fifteen hundred Facebook friends are close and personal.
For a different analysis, let’s head to California. The State Bar there issued a Formal Opinion on this issue. The key question, according to the Bar, is whether Ali’s Facebook posts constitute “communications” which would make them subject to the California Rules of Professional Conduct. Rule 1-400(A) defines “communications” as: “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client…”
Let’s say Ali posted “I just won a case! Let’s celebrate!”. That post is not a “communication” under rule 1-400(a) because it is not a message or offer “concerning the availability for professional employment.” However, Ali’s post “I passed the bar! Call me for a free consultation!” is a message or offer “concerning the availability for professional employment”. Thus, it is subject to the California Rules of Professional Conduct on advertising. Ali would have to make sure her posts met those standards (font size, disclaimers, etc.) if she wants to put it up on Facebook
So what do we think? Should Ali be allowed carte blanche to solicit her Facebook friends, because, after all, they are her “friends”. What if Ali’s Facebook page was public? Or, what if Ali has less than fifty friends? As we discussed last week, the virtual society on Facebook is very different from real-life society. Should the rules be different, and if so, how? As for Ali, she decides that she won’t mass spam her Facebook friends and will instead find clients the old school way. She closes down her Facebook page and gets ready for her some more in-person networking.