Attorneys have the option to use social media to enhance their careers and businesses. But each attorney should keep in mind a few precautions before sharing anything. Failure to take these seriously can cost lawyers their jobs, or worse, their bar licenses.
In her Corporate Counsel column, Julie Langdon cautions attorneys:
- Be Wary of Self Promotion
- Keep Your Client’s Information Confidential
- Know Your Social Media Discovery Limits
- Do Not Have Communications with Judicial Officers
- And…Think Before You Post
While written in a more general nature, these rules apply in Texas just the same. Part of my recent San Angelo presentation was Lawyers and Social Media: Is it really advertising?
In Texas, Rules 7.02 and 7.04 govern public media advertising, and yes, social media is a form of electronic advertising, especially where it is open or available to the public (think public law firm page on Facebook, public twitter posts attributed to “firm”). At a minimum, advertising must reflect the lawyer or law firm responsible and the principle office. Under Rule 7.07, lawyers are required to file a copy of advertising (including websites) with the advertising review committee of the State Bar. Generally, advertising via “tombstone” information is not required to be filed. Also, materials that are purely academic, editorial and educational in nature are not required to be filed with the review committee.
From the State Bar, Advertising Rules, Interpretive Comment 17:
The Internet and Similar Services Including Home Pages. (March 1996, revised May 2003, Revised 2010)
Part VII of the Texas Disciplinary Rules of Professional Conduct applies to information disseminated digitally via the Internet. A digitally transmitted message that addresses the availability of a Texas lawyer’s services is a communication subject to Rule 7.02, and when published to the Internet, constitutes an advertisement in the public media.
A website on the Internet that describes a lawyer, law firm or legal services rendered by them is an advertisement in the public media. For the purposes of Part VII of the TDRPC, “website” means a single or multiple page file, posted on a computer server, which describes a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).
Of the pages of a website subject to these rules, many may be accessible without use of the site’s own navigational tools. Of those pages, for the purpose of this Interpretative Comment, the “intended initial access page” is the page of the file on which navigational tools are displayed or, in the case that navigational tools are displayed on several pages, the page which provides the most comprehensive index capability on the site. The intended initial access page of a lawyer or law firm’s website shall include:
1) the name of the lawyer or law firm responsible for the content of the site
2) if areas of law are advertised or claims of special competence are made on the intended initial access page or elsewhere on the site, a conspicuously displayed disclaimer regarding such claims in the language prescribed at Rule 7.04(b); and
3) the geographic location (city or town) in which the lawyer or law firm’s principal office is located. Publication of a link to a separate page bearing the required disclaimer or information required by Rule 7.04(b) does not satisfy this requirement.
Social Media Sites
Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.
Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements.
So, yes, social media sites and blogs can be advertising and in most cases are advertising. Remember all advertising must be filed with the Advertising Review Committee and approved.
Corporate Counsel hits the nail on the head: be wary of self promotion – this is the very advertising the Texas Bar cautions against in the rules. Posting “wins” or settlements can be misleading to the public and create a false or unjustified expectation for future clients. We know that every case is different, and your advertising must acknowledge and state such. So be careful with that self promotion advertising!
Her additional points are well taken. Know that you likely cannot seek discovery by “friending” or otherwise attempting to retrieve information from opposing parties or witnesses, unless of course you disclose the purpose of your “friend” request. Know that you must keep client information confidential absent your client’s consent to disclose his information. Know that “friending” and communicating with judges and court staff could be ex parte communications which are prohibited. And always, know that you should stop and think before posting anything as nothing is truly private when posted on any social media or internet site.