When are an attorney’s social media posts subject to ethics rules on attorney advertising?

Have you ever wondered under what circumstances your social media posts might be subject to your state’s professional responsibility rules related to attorney advertising?

Well, if you’re a California lawyer you can wonder less. Maybe.

The State Bar of California’s Standing Committee on Professional Responsibility and Conduct has issued Formal Opinion No. 2012-186. In its Opinion, the Standing Committee sheds some light on what types of SM posts might be subject to attorney advertising rules.

The Opinion provides a hypothetical example of an attorney who has a personal profile page on a social media website. The example assumes that the attorney regularly posts comments on personal profile page. It then considers whether the following posts are subject to the rules:

·
1 “Case finally over. Unanimous verdict! Celebrating tonight.”
2 “Another great victory in court today! My client is delighted. Who wants to be next?”
3 “Won a million dollar verdict. Tell your friends and check out my website.”
4 “Won another personal injury case. Call me for a free consultation.”
5 “Just published an article on wage and hour breaks. Let me know if you would like a copy.”

Committee’s Opinion

Here’s the TL;DR version of the Committee’s Opinion with regard to the example posts:

1. Not a communication under rule 1-400(a)

2. “Who wants to be next?” meets the definition of a “communication” because it suggests availability for professional employment. And it’s in violation because it doesn’t contain the appropriate disclaimers.

3. “Tell your friends to check out my website,” in this context, convey a message or offer “concerning the availability for professional employment.” So it is a communication subject to the rules and must contain proper advertisement disclaimers.

4. An offer of a free consultation is a step toward securing potential employment, and the offer of a free consultation indicates that the lawyer is available to be hired. On balance, this example in the Committee’s opinion constitutes a “communication.”

5. Statement does not concern “availability for professional employment.” Not communication under the rules.

Do attorneys at your firm use social media? Does your firm have a clear social media policy? Would attorneys at your firm be able to distinguish attorney advertising posts from others?

(H/t Bob Ambrogi for bringing to my attention)