Given the history of attorney advertising regulation, 1 the intersection between the rules of professional conduct and new forms of communication is not a simple one. In this section, I’ll go through some of the specific areas that concern attorneys the most.
However, before doing so I must hit on a theme that informs this entire discussion. Attorneys can avoid at least 95% of all potential problems with communications and the advertising rules if they follow two basic guidelines:
Writing For Potential Clients and Referral Sources: Do not “pitch.” Do not sell yourself. Do not engage in any form of “interruption marketing.” Social media is an “inbound marketing” vehicle. It’s a way to draw people in by offering them something they find valuable, something that communicates inherently your competence and approach. Too many attorneys get this wrong and use social media as a billboard. But that’s not how it works. Potential clients and referral sources don’t use social media to see a stream of marketing messages. They use it to stay in touch and stay informed. Use it for that – and ONLY that. Marketing messages in social media are not just useless; they can be actively harmful – both by communicating that you are someone who “doesn’t get it” and by potentially creating ethics violations. 2
Writing about Current and Former Clients: If you’re thinking about writing something about current or former clients, put yourself in the client’s shoes. Is this something they would want to see? Something they would be proud of? If you have any doubt whatsoever that the answer to these questions would be “yes,” find something else to write about.
With these guidelines in mind, let’s look at some of the most-frequently-asked-about areas that come up with respect to the Rules of Professional Conduct and social media.
- Social Media Updates as Ads
- Client Solicitation
- Embellishment & Falsehoods
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- Or to put a finer point on it: 1) the fact that much of the post-Bates liberalizing of the rules has been done grudgingly; 2) the fact that lawyers being lawyers, the profession’s rules are detailed and often picayune; and 3) the Supreme Court’s suspicion of lawyer advertising in close cases. ↩
- Why? Because proper use of social media doesn’t involve marketing messages, and thus doesn’t fall under the regulatory purview of the Bar’s rules governing attorney advertising. Once you start using it as billboard, however, those status updates are subject to the rules. ↩