By Bryan D. Stoffel, Stoffel Law LLC
In 2018, the power and presence of social media outlets and usage is perhaps stronger than ever before. We live in an age when, for better or worse, information, interactions and interpersonal relationships may be discovered, created, and shared at the press of a button. While this instantaneous and wide-reaching form of correspondence certainly has many “pros,” we have all seen countless examples of “cringe-worthy” uses (and, by all accounts, abuses) of the social media outlets available to the masses. From celebrities, athletes and politicians, to your neighbor or “wildcard” aunt, many have made the all-too-familiar mistake of pressing “send” too hastily, leading to public shame, ridicule, reputational damage and even financial loss.
Given the potential “pitfalls” associated with utilizing social media, attorney Seth R. Wilson of Adler Tesnar & Whalin presented an informative and interactive cycling and ethics CLE on February 23 at CycleBar Traders Point, entitled “To Post or Not to Post: Ethical Marketing Tips and Tricks for Lawyers and Social Media.” Wilson discussed proper ethical usage of social media, to bolster a firm’s marketing efforts; to increase (quality) client retention; and to maximize the value of new technology to a firm’s practice. Below is a recap of Wilson’s most pertinent points as to the usage of social media for the tech-savvy practitioner.
According to Wilson, all attorneys, prior to embarking upon the journey that is social media marketing, must carefully review Indiana Rules of Professional Conduct 7.1 – 7.4 to ensure compliance with Indiana’s ethical rules as to advertising and solicitation of attorney services. Although I know you all are eagerly dusting off your copies of the Rules of Professional Conduct, let’s briefly look through the applicable rules (or relevant portions thereof) together and analyze those rules, through the lens of law firm social media marketing and solicitation:
RULE 7.1. COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
“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.”
As with statements on a law firm’s website or other marketing materials, attorneys should make certain that all information posted on social media outlets is true, verifiable, and does not mislead any viewers of the message. Like traditional marketing efforts, attorneys would be wise when posting to avoid grandiose “data-driven” claims as to an ability to obtain particular verdicts, monetary settlements, or outcomes for a given client; as well as potentially problematic “testimonials” from prior clients that may create unrealistic expectations in potential clients. Additionally, unlike traditional marketing methods, social media offers a much wider potential audience, and attorneys must be mindful as to potential recipients of any given post. Attorneys must know who is “following” the attorney or firm, including former, current or prospective clients, and must properly and accordingly edit and censor all social media content, to conform to ethical rules.
RULE 7.2. ADVERTISING
“…lawyers and law firms may advertise their professional services and law related services.”
Wilson spent much of the CLE discussing the use of LinkedIn to support a law firm’s marketing and client development efforts. Considered by many as a more “professional” form of social media, LinkedIn offers creative means to “pitch” one’s self to colleagues, peers, and potential clients; to “electronically network” with like-minded professionals; and to update followers on professional achievements, experiences, and activities, all of which falls within the purview of Rule 7.2. Unlike other social media outlets, LinkedIn offers followers the opportunity to “endorse” a user for a given “skill” (i.e. civil litigation; legal research). While an attorney may personally list such “skills” (if true and verifiable), when followers attribute a given “skill” to an attorney, the attorney must carefully review such “skill” to ensure that the endorsement does not violate the requirements of Rule 7.1 and 7.2. Wilson advised the audience of pedaling, sweaty attorneys to use common sense and reason, when deciding whether to let a particularly-endorsed “skill” remain on an attorney’s LinkedIn page. By way of example, as a family law attorney, I would likely be wise to remove an endorsement from a follower for “bird law,” (any Always Sunny fans out there?), as I know nothing of bird law and have never practiced bird law (not to mention that bird law in this country is not governed by reason, according to Charlie Kelly). Such an endorsement may be misleading to potential clients or employers and could create ethical problems if left on my profile.
Wilson also discussed ways in which attorneys may fully utilize lesser-known features of LinkedIn. For instance, since Microsoft’s acquisition of LinkedIn in June, 2016 (for a measly $26.2 billion), users may now actually upload, edit and share resumes and other Microsoft Word-based documents, via LinkedIn. Job seekers, upstart solo or small firm attorneys and established practitioners may benefit from LinkedIn’s vast array of networks and groups and LinkedIn’s sophisticated analytics allow users to track viewers of the user’s profile or posts (creepy), in real-time. Like Wilson, if a user has presented a CLE or has written an article for The Indiana Lawyer or a similar publication, the user would be well served to post a summary of the CLE presentation, or a link to the article, on the user’s LinkedIn page, to demonstrate the user’s expertise and knowledge as to a given subject.
In short, Wilson encourages attorneys to carefully craft a “professional” LinkedIn profile in line with the “image” that an attorney or law firm wishes to convey to the public. Wilson placed emphasis on consistently updating and improving an attorney’s LinkedIn profile and remaining relevant and “in focus” to an attorney’s followers, all while ensuring compliance with applicable ethical rules, primarily those dealing with honesty and truthfulness as to a given attorney’s qualifications and skills.
RULE 7.3. DIRECT CONTACT WITH PROSPECTIVE CLIENTS
“A lawyer (including the lawyer’s employee or agent) shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…”
As attorneys, our primary goal is to retain and assist clients and more bluntly, to get paid, grow our practices, and establish ourselves as respected professionals in the community. With the advent of social media, many attorneys are finding that advertising and client solicitation are more streamlined and simple than ever before. That said, attorneys must be wary not to overreach, when utilizing social media for client development. Under Rule 7.3, attorneys are strictly prohibited from directly soliciting a particular client’s business. Ethically speaking, one would be wise to avoid a Tweet along the lines of “Jane Doe, hire me!” or to include a disclaimer akin to “Tweets are not legal advertisements” in your Twitter bio. Approach social media marketing efforts with the goal to provide interesting, thought-provoking, and relevant content to followers and if one’s client base grows in the process, consider that a win-win.
RULE 7.4. COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION
“A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.”
In creating social media profiles, Wilson urges attorneys to list only those practice areas for which attorneys seek to build clientele. For instance, I have listed family law as my primary area of practice on my social media pages and I provide content largely consisting of Family Law-related articles and resources. I wish to attract Family Law clients, and I therefore must ensure that my “image” on social media is that of Family Law practitioner. By ensuring social media profiles are in line with professional practice, attorneys will guarantee maximum value and return on investment from social media efforts.
As general advice, Wilson urged attorneys to adopt a “less is more” approach to social media marketing, by selecting a single social media outlet to build, grow and sustain our practices. Otherwise, Wilson warned, attorneys are unlikely to create effective social media marketing campaigns, and will likely be spread too thin, in trying to create and deliver information across multiple platforms. Wilson indicated that attorneys may choose to operate as “curators” or “creators” (or a mixture of both), when utilizing social media – by locating and sharing previously-created content – i.e. articles – in the former scenario; and by developing and distributing original content – i.e. blog posts; instructional videos – in the latter scenario. Regardless as to one’s approach to social media marketing, commit to memory the Rules of Professional Conduct while remembering that these rules were put to paper long before the existence of Twitter, Facebook, and Snapchat. Nevertheless, the overarching principles of these ethical rules – to stay within the boundaries of common sense and reason – undoubtedly apply when leveraging social media technology, to build and grow our law practices.
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