I’m concerned that lawyers who use social media could violate the rule that prohibits practicing in a jurisdiction where you’re not licensed. It may seem far fetched, but things genuinely get murky when you realize how easy it is to establish a prohibited “systematic and continuous presence” in a foreign jurisdiction when using social media. Recently I commented on an ABA Issues Paper on the subject and my memo sets forth the details of my concern. It’s reproduced here—>
April 4, 2011 Memo to the ABA Ethics 20/20 Commission:
Please accept this Memorandum as my comment to the Ethics 20/20 Commission’s Issues Paper on Multi-Jurisdictional Practice. My comment pertains to Rule 5.5(b)(1), but does not apply to the issue of multi-jurisdictional practice as much as it applies to social media. While my comment might appear to be off topic, I believe it would be prudent to review the issue since the Commission appears to be reviewing Rule 5.5 in its entirety.
Rule 5.5(b)(1), and its commentary states,
(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…
Comment : Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).
The issue I am raising to the 20/20 Commission is: Whether a lawyer could be said to have established some “other systematic and continuous presence” in jurisdiction where she is not licensed by engaging in social media and other web-based activity?
Rule 5.5(b)(1) certainly prohibits a lawyer from establishing a physical presence in a jurisdiction where she is not licensed to practice law. However, that concept could be extended beyond physical limitations, as discussed in the ABA commentary. Some jurisdictions are even more specific and have acknowledged that a lawyer’s advertising activity could cause an attorney to run afoul of the rule. I understand that Ohio did just that when it noted in its rules that, “Comment  is modified to warn lawyers that advertising or solicitation of Ohio residents may be considered a ‘systematic and continuous’ presence, as that term is used in division (b).” My question is, why couldn’t the next extension involve social media and, is that what the Commission intends?
Take, for example, a lawyer who lives in New Jersey, but practices health care law. As a result, he becomes a consistent commentator on the Massachusetts health care system. Perhaps he comments on blog posts from Massachusetts-based newspapers; consistently retweets messages from that State’s Bar Associations or their Health Care Law Committee; consistently posts comments on a Facebook Fan Page for a Massachusetts-based law firm that practices health care law; places certain meta-data into his web products that attract searches seeking information on “Massachusetts health care law” or similar keywords; the variations are endless.
A logical extension of Rule 5.5(b)(1) supports the argument that the lawyer, through his targeted and geographically-concentrated postings, has violated the Rule because he established a systematic and continuous “social media presence” in a jurisdiction where he is not licensed. Rule 5.5, however, does not address the issue directly. My concern is that insofar as the Rule and its commentary remain silent on the issue, a large amount of uncertainty continues to exist. Thus, my question to the 20/20 Commission is the following:
Does the Commission agree that the foregoing argument is a reasonable interpretation of Rule 5.5(b)(1)? If so, does the Commission intend to allow rule 5.5(b)(1) to be extended in that manner? I ask that the commentary to Rule 5.5 be amended to reflect the Commission’s position.