Social Media Marketing and Ethics for Lawyers in 2014

Ethics for Lawyers: Using Facebook, Twitter & LinkedIn for Legal Marketing

National Constitution CenterJune 24, 2014

Jennifer Ellis, Esq.Lowenthal & Abrams, PC

&Jennifer Ellis, JD

jennifer@jlellis.netwww.jlellis.net

@jle_jd

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Jennifer Ellis• Attorney, Lowenthal & Abrams

– Legal Malpractice & Ethics• Law practice management consultant, Jennifer Ellis, JD

– Online presence/marketing & technology• Author Creating Websites: Using WordPress in One

Hour for Lawyers• Nationally known speaker and author

– Ethics– Social Media– Technology– Law Practice Management

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These are the Rules of Jennifer

1. Rules that apply off-line apply on-line

2. Amount of possible trouble is expanded by the number of people who can see what you wrote

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What is the Difference between a Cocktail Party and the Web?

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1.23 billion

1 billion people4 billion views/day

300 million

150 million16 billion photos

70 million243 million

152million

277 million

45 million1.3 million businesses

Reputation

• Our reputations are all we have• “Maintain the Integrity of the Profession” (8.x)• Viral can be positive or negative

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The Web is:

• Networking tool• Advertising medium• Your reputation

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Potential Clients Must

• Find you• See your expertise• Feel comfortable with you

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Break for Ethics

• ABA Ethics 20/20– Effort to adjust ethical rules for impact of

Technology, including:• Web• Social Media

• Competence includes use of technology• Most states have adopted

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For Example: Pennsylvania

• Competence includes:

“Keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”

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No Need to Panic about Technology

Be aware of technology you should be using

Understand and mitigate risks of technology you are using

Take reasonable precautions to protect data

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Back to Marketing –Ask Yourself

• Who hires you?• How will they find you?• Where are they looking?• What are they seeking?• Why do they need you?

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Be Easy to Find

• Website• Blog• Google+ • Facebook• LinkedIn• Twitter• Numerous other sites

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Blogs & Websites

1. Website – Center of online presence1. Blog

1. Valuable SEO2. Constantly changing content

2. SEO – Search Engine Optimization1. Google2. Bing3. Yahoo

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Blog

• 1 in 4 people read blogs– 152 million blogs

• Law firms increasing use of blogs• Best way to show your

– Voice– Knowledge

• Place for detailed content– You have control

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Content

• What questions do people ask at the first interview?– Answer

• What is current in the news related to your practice?– Explain

• Relevant cases or laws?– Discuss

• What interests you as a person?– Share

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• Lawyers Don’t Need Websites?• Malware Prevention on WordPress Websites and Blogs• Resolve to Backup your Data• Ever thought about building your own computer?• Facebook jumps on the social search bandwagon• Pinterest creates business pages• Twitter sinks a personal injury case

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• Why won’t a lawyer take my Philadelphia medical malpractice case?

• Pennsylvania Fatal Truck Accidents on the Rise• Elder abuse is on the rise in Pennsylvania and across

the country• Jury Awards Child $1.1 Million in a Harrisburg Brain

Injury Medical Negligence Case• Strokes and how iPads can help the victim through the

process

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Break for Ethics

• Is Social Media Marketing?– What is marketing?“The action or business of promoting and selling products or services, including market research and advertising.”

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What Is the Intent?

• Directly seeking clients?– Marketing

• Providing broad educational information?– Not marketing

• My advice?– Assume everything is marketing

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Advertising Rules

• Follow advertising rules (7.2)• Follow rules for all states in which licensed or

seeking clients (8.5)

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Honesty is CrucialRule 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.”

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What is Misleading?

• One office?– Not offices of

• One attorney?– Not Smith & Associates

• Watch domain names– Attorney.com– Attorneys.com

• Appropriate practice areas• Fee language

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Ethics & Marketing Problems

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Proper Use of Firm Name

• Virginia attorney called himself & Associates– Had no associates

• Listed practice groups that did not exist• Listed non-attorney as attorney• Also engaged in other malfeasance which is

what brought his advertising to light• Suspended

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Is This Misleading?

• Attorney right out of law school using pictures like this on his site

• Content discusses his substantial experience in numerous areas of practice

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Watch Your State’s Rules

• Specialization – not an expert unless– Patent– Admiralty– Other approved

• Keep copies for 2 (or more) years– Screen shots– PDFs– Social Safe– Backupify

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Disclaimers

• Not legal advice (informational only)• Does not form an attorney/client relationship• Confidentiality concerns• Geographic limitations• Other requirements from your jurisdiction(s)

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Blog Disclaimers & Content

• Hunter v. Virginia State Bar• Blog listed favorable results• Board found blog:

– Constituted advertising– Made “false or misleading communication about

the lawyer or the lawyer’s services” (Rule 7.1)– Failed to include a disclaimer (7.2)– Violated client confidentiality (1.6)

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Hunter Appealed

• Overturned ruling on 1.6, confirmed the rest. Required a disclaimer:– “Case results depend upon a variety of factors

unique to each case. Case results do not guarantee or predict a similar result in any future case.”

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Hunter Appealed

• Did not violate 1.6• Is commercial and not political speech

– Intermediate scrutiny

• Potentially misleading– Board can require a disclaimer

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Hunter Appealed

• US Supreme Court denied cert• Hunter planned to remove blog rather than

use disclaimer– Note Virginia rules have changed since the ruling,

but still require a disclaimer.

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Google+

• Integrated with Google search results• Helps with location based searching• Crucial for SEO

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Personal Google+ Profile

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Google Author

• Extremely Important for SEO– Connects Google+ profile to content on blog– Requires appropriate code to form connection

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Google My Business

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Business Google+ Profile

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Best Practices for Google+

• Use the appropriate keywords in your post– Use hashtags # as well

• Seek to engage, but in a limited fashion– Google is not very successful as social media and

it not worth too much time as compared to other sites for engagement

• Include pictures• Link your YouTube account

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Facebook & LinkedIn

• Use your Facebook and LinkedIn accounts as a way to network with– Potential clients– Other attorneys

• Facebook = Consumer• LinkedIn = Business

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Ethical Concerns

• Follow all ethical rules

• Put a disclaimer on your account

• Follow terms of service

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Skills & Endorsements

• People can endorse you for any skill on LinkedIn

• If you do not have the skill, remove it

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Facebook & LinkedIn

• Create a page for your firm • Becomes a mini-website on Facebook• Useful tool on LinkedIn

– Ask employees to connect the pages– Encourage followers – Provide useful information– Share blog posts– Communicate and engage– Include disclaimers

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Use Apps to Extend Content

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LinkedIn Page

• Watch for specialties– New York ethics

opinion forbids use of this tab

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Best Practices for Facebook: Account

• Engage people on your personal account– Share only what makes you

comfortable– If you are not comfortable, don’t

use your personal account• I discuss:

– My dog– My work– News– Other people’s posts– My blog posts– Random facts

• I get clients from Facebook

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Concerns

• Should you friend clients on Facebook?– Depends on how you use your account– Very personal?

• No

– General?• Maybe

• If you are uncomfortable, tell people to like your business page instead

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Best Practices: Facebook Page

• Share interesting blog posts• Share interesting news• Encourage conversation• Don’t just use your page as a one way

newsletter• Have a robust page• Offer contests and sweepstakes

– Watch law and ethics in your state

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Break for Ethics

• What kind of posts are ok on Facebook?– Watch confidentiality– Beware of answering specific questions with

detailed advice– Keep true to your personality

• Don’t be afraid of controversy, but don’t seek it out for controversies sake

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Specific Examples of Facebook PostsState Bar of CA – Opinion 2012-186

• Social Media Postings Subject to Advertising Rules?

• Assume all Postings Subject to Rules• Rule 1-400 (Advertising and Solicitation)• Article 9.5 (Legal Advertising)

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The Rule

• Communications – “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.”

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The Rule• Communication or solicitation shall not:

1. Contain any untrue statement; or2. Contain any matter, or present or arrange any matter in a

manner or format which is false, deceptive or which trends to confuse, deceive, or mislead the public; or

3. Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, nor misleading to the public or

4. Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation as the case may be; or

5. Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexatious or harassing conduct

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Example One

• “Case finally over. Unanimous verdict! Celebrating tonight”– Not a communication– Does not contain an offer concerning the

availability for professional employment

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Example Two

• “Another great victory in court today! My client is delighted. Who wants to be next?”– Is a communication

• “Who wants to be next” is availability for employment

– Violates rule• Does not contain a disclaimer• Does not state it is an advertisement• Offers guarantee or prediction of winning

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Example Three

• “Won another personal injury case. Call me for a free consultation.”– Communication

• “Call me for a free consultation” suggests availability for employment

• Free does not mitigate the problem

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Example Four

• “Just published an article on wage and hour breaks. Let me know if you would like a copy.”– Not communication– Information regarding an article

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Best Practices for LinkedIn• Keep it professional

– Avoid sharing personal information beyond work• Otherwise risk annoying people

• Do not spam in boxes with ads for yourself• Be careful about disturbing people you do not know

– Be very polite– Watch the first impression

• Join relevant groups and be active to engage• Share blog posts• Share useful information• Network

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Ads on Facebook

• Purchase ads on Facebook– Target by demographics

• Age• Gender• Marital status

– Target by interests– Pre-existing email lists

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Facebook Ads

• Connect – Facebook page

• Increase likes

– Website• Increase traffic• Obtain leads

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Boost Posts

• Write a post• Promote it

– Costs varies from $5 and up

– Increases visibility of post, encourages likes and comments

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LinkedIn Ads

• Purchase ads on LinkedIn– Target by

• Job Title• Industry• Age• Location

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Ethics Concerns

• Are ads on social media ok?• No clear opinions yet, but pay-per-click on

Google has been in use for years– Some stricter states which require detailed

disclaimers in the ad might forbid use• Be sure to check your rules

– Some states, probably acceptable to link to a location with the appropriate disclaimers

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Twitter

• 140 character micro blogging– A great way to let people get to know you as a

person– Share quick bits of information– Re-share what other people post– Link your Facebook, LinkedIn accounts and Blog to

Twitter as a way to get more value for your effort– Crucial to engage

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• People responding to• Favoriting• Following• Retweeting

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Language of Twitter

• Be careful sharing posts from Twitter to other sites– The language is different– #hashtags– RT = Retweet– @jle_jd is to my attention, references me– Abbreviated language to fit within 140 characters

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Best Practices for Twitter

• Share and share alike– Share other people’s content, they will share yours

• Give credit where credit is due• Thank people for their interactions• Complete your thoughts

– Watch for portions of your posts being cut off when you use tools to post

• Use hashtags that make sense• Humor is fine

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Ethics Concerns

• Twitter is potentially unusable in several states– In Florida, each tweet must have:

• Attorney name• Office location

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Twitter Ads

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Break for Ethics: Solicitation

• What is solicitation? (Rule 7.3)– A solicitation is a targeted communication initiated by

the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

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Real Time Communication

• Not allowed to use real time communication – Phone call– Instant chat

• Ok– Email– Website– Banners– Social media posts– General chat rooms

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Beware!

• Facebook– Person not online, private message

• Like email– Person online, private message

• Like chat (Immediate?)

• Beware tagging someone in a post if she has had a recent tragedy– Might be considered targeted solicitation– Will be considered bad taste

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People Like to Watch

• 1 billion unique users each month• 4 billion videos viewed each day• Use video to help people see you

– Allows people to connect– Provides a different form of content– Excellent SEO

• Share by embedding

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Use SEO

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Best Practices for YouTube

• Use videos to:– Let people get to know you

• Short bios• Other useful information about you

– Educate people• Brief question and answer sessions on your practice

area– Use keywords in description and title as well as

designated area• Share videos throughout your network

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Share Documents

• Scribd• SlideShare• Increases reach of presentations• Embed on your network• Use proper keywords for SEO

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Scribd

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SlideShare

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• Popular site among laypeople for finding attorneys– 5 million visitors per month– 95% of attorneys listed– 150k attorneys have claimed profiles

• Controversial among attorneys– Cannot unclaim your listing– Not always clear how ratings are established

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Best Practices for Avvo• Claim your listing if:

– No disciplinary problems– Robust profile

• Complete the listing– Profile affects score

• Get endorsements– Endorsements affect score

• Seek reviews– Reviews do not affect score

• Answer questions– Increases findability

• Follow terms of service• Include disclaimer

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Attorney/Client Relationship (5.5)

• Be careful about answering questions in comments (or on other sites)– Don’t want to inadvertently form attorney/client

relationship– Practice in state where not licensed

• Suggest people call you instead of answering online when appropriate

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What is an Attorney/Client Relationship?

• Formed when a client has reason to believe the attorney is handling his legal interests– Express or implied

• Standard is objectively reasonable belief

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Online Attorney/Client Relationship

• No cases yet involving unintentional formation of attorney/client relationship through Avvo, comments on blogs or similar locations

• Be careful about how specific you are when offering information

• Be broad about the concept as opposed to offering detailed advice on what the person should do

• Encourage person to contact a lawyer in his jurisdiction

• Use a disclaimer

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Unauthorized PracticeRule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law• (a) A lawyer shall not practice law in a jurisdiction in

violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

• (b) A lawyer who is not admitted to practice in this jurisdiction shall not:

• (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

• (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

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Other Question/Answer Sites

• Beware sites that do not follow ethical rules– Fee splitting with non-lawyers (Rule 5.4)– Answering questions without

• Detailed information – risk giving bad information• Conflict checking – risk representing the wrong side• Location information – unauthorized practice of law

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Lead Generation Sites FineRule 7.2A lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.

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Gelocation

• Where are you?• What are you doing?• Not great for clients

– Confidentiality issues• Good for attorneys

– Speaking on x at y– Networking

• At PBA event for Estate and Elder Law Attorneys

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Examples

• Facebook• FourSquare

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Reviews

• Numerous opportunities for reviews online– Google+

• Personal & Business

– Facebook– Avvo– Put on your website

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Specific Ethics Concerns

• Do not give away anything in exchange for a review

• Some states do not allow testimonials at all• Others have specific requirements

– Example, PA may not have a celebrity endorse you• Probably ok to have a past client who happens to be a

celebrity review you though

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Ethics and Reviews

• Responsible for the content – Cannot state “this attorney will win for you” or

other promises– If you cannot edit content, respond to clarify

• Bad review?– Best to respond politely– Do not share confidential information to defend

yourself

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Attorney in Trouble• “This is simply false. The person did not reveal all the

facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.”

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Suing Over Bad Reviews

• Watch for the Streisand Effect• Barbara Streisand sued to have an image of

her house removed from the Internet– Resulted in greater publicity and a lot of insults

• Lesson learned?– Suing rarely works

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Connect Everything

• Provide links to all of your accounts and your Website everywhere you can

• This will provide the maximum opportunity for people to find and research you

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Links

BlogBlogWebsite

Google+

Twitter

Facebook

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Managing Time

• Tools such as HootSuite help• Automatically connect sites when appropriate

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HootSuite at Work

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How to Behave

Be Aware That Professional Versus Personal Conduct Doesn’t Matter on the Web

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Prosecutor on a Personal Crusade Against a Student

• Wrote a blog to attack a student– “Welcome to ‘Chris Armstrong Watch’. This is a

site for concerned University of Michigan alumni, students, and others who oppose the recent election of Chris Armstrong — a RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR —as the new head of student government.”

• Claimed it was personal so irrelevant to his work

• Refused to step down

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Prosecutor Fired

• His attorney, said his client was merely expressing his free-speech rights

• In explaining the firing his ex-employer stated “[he] repeatedly violated office policies, engaged in borderline stalking behavior and inappropriately used state resources”

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Tweeting “Jokes”

• Indiana AG Fired over Tweet– “use live ammunition”

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Remember No One Can See or Hear You

• No body language or vocal inflection• Different senses of humor• What is a joke to one person is an insult or a

grievous threat to another.

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General Business Concerns

• Encourage firm’s attorneys to use social media• Encourage someone to keep track of all social

media for the firm• Have clear policies on social media use

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Employees

• Make employees understand that they are not allowed to post on behalf of the firm unless it is part of their job

• Make it clear that if someone violates client confidentiality he will be punished (up to and including termination of employment)

• Lawyers are responsible for their employees’ actions (Rule 5.3)

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Prepare for Problems

• Have a plan for responding to problems• Empower someone to respond in an

emergency– Waiting is not an option– Know when not to respond (things are out of

control and people are ganging up)– Know when to respond

• Legal issues• Harassment concerns

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Final Thoughts

• Don’t be afraid of social media– It is a powerful marketing tool– It is a powerful networking tool– Simply be sure to remember that many people will

see what you post– Obey the ethical rules– Obey advertising laws

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Thank You

Jennifer EllisLowenthal & Abrams, PC

&Jennifer Ellis, JD

jennifer@jlellis.net www.jlellis.net

@jle_jd

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