One major roadblock preventing a lawyer from engaging in social media marketing is the uncertainty surrounding how the advertising ethics rules apply to social media. This section will set forth the applicable lawyer advertising rules, explain how the advertising rules apply to a lawyer’s personal and professional social media use, and provide examples of actual social media posts in compliance with the rules. While this section addresses the general advertising rules, a lawyer must be diligent in reviewing the specific advertising rules, ethics opinions, and guidelines directed toward social media in their jurisdiction.
Social Media Profiles Must Comply with Advertising Rules Generally speaking, a lawyer’s personal profile on a social media website that is used solely for social purposes is not subject to the lawyer advertising rules.
A profile is used “solely for social purposes” when it is only used to maintain social contact with family and close friends. A lawyer’s personal profile might not be considered “solely for social purposes” if the lawyer posts information about their practice. In the event a lawyer uses an individual profile to promote themselves or the law firm’s practice, the content posted on the social media profile is subject to all of the lawyer advertising rules.
When Do Social Media Posts Constitute Lawyer Advertisements?
If a lawyer’s social media posts could be considered an advertisement, they must include certain required advertising disclosures. Social media posts are generally considered advertisements when they concern the availability of legal employment. Consider the following examples:
Example 1: “Case finally over. Unanimous verdict! Celebrating tonight.”
This statement, standing alone, is not likely to be considered an advertisement
because it does not concern the availability of legal employment. Generally
speaking, lawyer posts that simply announce victories without accompanying
information about the lawyer’s availability for professional employment are
unlikely to be considered an advertisement. Here, the lawyer does not need to
include the required disclosures.
Example 2: “Another great victory in court today! My client is delighted. Who wants to be next?”
The statement, “Another great victory in court today!” standing alone is not likely an advertisement because it is not concerning the availability of legal employment. However, the addition of the text, “Who wants to be next?” promotes the lawyer’s availability for legal employment. This would make the post an advertisement.
Example 3: “Won a million dollar verdict. Tell your friends to check out my website.”
This post also qualifies as an advertisement because the words “tell your friends to check out my website” conveys a message concerning the availability for legal
employment. In this context, the lawyer is asking the reader to tell others to look at the lawyer’s website for possible legal employment.
Example 4: “Won another personal injury case. Call me for a free consultation.”
This post would also be considered an advertisement because an offer of a free consultation is a step toward securing potential employment, and the offer
indicates that the lawyer is available to be hired.
Example 5: “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
This post is not an advertisement because it does not concern the availability for legal employment. The lawyer is merely relaying information regarding an article that the lawyer has published, and is offering to provide copies. Accordingly, this post does not need to include either of the required disclosures.
How to Modify Prohibited Statements into Permitted Posts
A lawyer can prevent social media posts from running afoul with the rules prohibiting deceptive and misleading statements by using modifying language such as “try,” “pursue,” “may,” “seek,” “might,” “could,” and “designed to.”
Here are two examples:
Prohibited Post 1: I will get you acquitted of the pending charges. Permitted Modification: I will pursue an acquittal of your pending charges. Explanation: In the first social media post, the lawyer promises a specific legal result. In contrast, in the second post the lawyer does not promise a specific a legal result but merely conveys that the lawyer will try to obtain an acquittal on behalf of the prospective client.
Prohibited Post 2: My law firm will stop your foreclosure.
Permitted Modification: My law firm is committed to protecting your home.
Explanation: In the first social media post, the lawyer promises that the law firm will achieve a specific legal result. In the second post, the lawyer makes an aspirational statement of the general goal the law firm will try to achieve.
Sharing Past Results on Social Media
Social media posts about results obtained on behalf of a client, such as the amount of a jury award or the lawyer’s record in obtaining favorable verdicts, are only allowed if the lawyer obtains the client’s permission and the results are objectively verifiable and not misleading. Misleading Posts About Past Results are Prohibited Social media posts about past results that may be misleading include:
- A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default.
- A result that fails to disclose the judgment obtained was far short of the client’s actual damages.
- A result that is not typical of persons under similar circumstances. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.
Posts About Past Results Must be Objectively Verifiable
Objectively verifiable posts about past results can be proven true through empirical data, evidence, or observation. The following examples can be proven through evidence:
- I have obtained acquittals in all charges in four criminal defense cases.
- Our law firm obtained a one million dollar judgment for an injured client.
Past Results that May Not Be Objectively Verifiable
The following general statements may not be objectively verifiable:
- I have successfully represented clients charged with violating the law.
In a criminal law context, the lawyer may interpret the word “successful” to mean a conviction to a lesser charge or a lower sentence, while a prospective client likely would interpret the word “successful” to mean a complete acquittal of all charges.
- I have won numerous appellate cases. An appellate lawyer may interpret the word “won” to mean that one of several appellate issues in the case was remanded for further proceedings, where a prospective client would interpret the word “won” to mean that the lawyer obtained a final decision in favor of the client following an appeal.