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.
Social media and smart phones have unleashed a flood of new advertising possibilities. Unfortunately, each have a unique set of ethical concerns.
Many of us have seen ads on Facebook to the right side of the screen listed under the heading, “Sponsored.” They’re short ads with some teaser text that tries to entice you to click through to get more information. That’s the same type of ad being used on the popular Pandora radio smart phone app (and its competitors). Pandora is an internet radio station that lets you customize the music you hear. The popular free version of Pandora is subsidized by short teaser ads that are displayed on your phone. Usually those ads contain little more than a photo and a marketing tag line that entice you to click through, just like the Facebook ad. The problem is that both the Facebook and Pandora ads potentially violate Rule 7.2.
RPC 7.2(c) states that, “Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.” Obviously, the Facebook and Pandora “teaser” style ads don’t include that mandatory information. Sure, you might be able to click through the ad and find yourself on a landing page that has the required information, but it’s not there on the face of the ad and, as a result, appears to violate the rule.
The other type of new advertising technique that may be off limits to lawyers is the popular Groupon application. Groupon negotiates discounts with businesses and then offers the deal to thousands of subscribers in a free daily email. Groupon makes money by getting paid a percentage of what the advertiser earns. The problem is that if the advertiser is a law firm, that arrangement might constitute improper fee splitting per RPC 5.4(a).
In fact, a proposed (but unpublished) North Carolina ethics opinion states that the Groupon arrangement is not permitted, but the question has been referred to a subcommittee for further review. You can read about the details a bit more in an ABA Journal article here.
It’s the same old story. This wonderful technology brings both new opportunities and new pitfalls as well.
The ABA Journal recently reported that, “the [Kentucky] bar has proposed a regulation that would bar solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the bar’s Advertising Commission.” For those who want to see the proposed amendment directly, you can check out a posting on the website that calls itself the “Kentucky Law Review.”
I understand where they’re coming from. Most of what lawyers do on Facebook and other social networks are not-so-veiled attempts at promoting themselves and self promoting speech is basically a subtle form of advertisement. I’ve been telling people in my seminars for a while now that the ethics rules have always regulated advertising, so it was just a matter of time until some bar extended that regulation to self promoting speech on social media.
Here’s how the ethics rules regulate attorney speech in this regard: The most current ABA Model Rule 7.2 tells us that lawyers can “advertise services through written, recorded or electronic communication, including public media.” The actual language that we use in those advertisements is regulated by Rule 7.1, which states that any communication you make about yourself or your services can not be false or misleading. Here’s the kicker: The restriction on your speech set forth in Rule 7.1 isn’t limited to that which is contained in your advertisements. 7.1 covers all communications that you
There are, therefore, two critical questions: When are your statements on Facebook considered plain old speech, as opposed to a “communication about a lawyer or the lawyer’s services” that falls under the purview of rule 7.1? Or seen from another perspective, when do your self promoting
Oh yeah…this is gonna be a mess. Not only will we have fun trying to figure out what standards Kentucky will employ, but each state is likely to address this differently. As my grandmother would say, “Oy vey….”
[Comments are apparently being accepted in Kentucky until December 15th. I’ll keep you posted on the developments]
There’s been a lot of confusion about when an attorney’s actions in social media rise to the level of prohibited “solicitation” under Rule 7.3. In June of 2010 the Philadelphia Bar Association Professional Guidance Committee addressed this question when it reviewed the propriety of using different types of social media to solicit clients and issued a pretty surprising decision. Apparently, chat is not “real time electronic communication” in Philadelphia. For what it’s worth, I agree. [See Opinion 2010-6 here]
Pennsylvania Rule 7.3 sets forth the generally accepted rule that a lawyer may not solicit employment through in-person, by telephone or by real time electronic communication from a prospective client unless there is a family, close personal or prior professional relationship with the prospective client. Everyone I’ve ever spoken to has always assumed that that “real time electronic communication” means “chat.” In fact, the opinion acknowledges that “the ABA Reporter’s Explanation states that “real time electronic communication” refers to chat rooms.” However, the Philadelphia Bar disagrees with the Reporter’s Explanation and doesn’t interpret the words the same way.
The Bar acknowledges that, “social attitudes and…rules of internet etiquette are changing.” The Bar believes that one of the ways things are changing is that users today understand that, “they need not respond instantaneously to electronic overtures and that everyone realizes that…chat room comments can be readily ignored, or not, as the recipient wishes.”
Thus, the Bar states that even though the ABA intended Rule 7.3(a) to characterize chat room communications as prohibited “solicitation,” they don’t think the rule should be applied that way because the, “risks which might be inherent in an individualized, overbearing communication are not sufficiently present to bar the use of such methods of social interaction for any solicitation purposes.”
In other words, people today know that they don’t have to respond to chat messages– they can simply shut down the chat session and move away from the conversation. As a result, the Philadelphia Bar refused to ban chat-based solicitation outright and instead stated that, “real-time electronic communication” is limited to electronic modes of communication used in a way in which it would be socially awkward or difficult for a recipient of a lawyer’s overtures to not respond in real time.”
The opinion mentioned that it’s possible to violate the rule in a chat room if, for instance, a lawyer sends a chat message that demands an instantaneous response. They also stated that voice over IP would likely be a type of “real time communication” that would be problematic.
So what does this mean? Under the Philadelphia rule, if you’re talking by chat to a prospective client you’re not considered to be engaging in improper “solicitation” simply by virtue of having the chat conversation. Rather, you cross the line to prohibited behavior, and violate 7.3, when you require that the prospective client respond immediately. The trigger seems to be acting in an overbearing manner and compelling an instantaneous response from the prospective client.
[An interesting note: Technically, the opinion refers to “chat rooms.” I’m not aware of many people frequenting chat “rooms” anymore– most people use the chat function on Facebook. Nonetheless, I think the underlying rationale of the opinion applies to both.]
If you’re in Pennsylvania, the analysis probably stops there, but if you’re in a state that has adopted the ABA model code, there still seems to be a hole in the rules…
Even if your model code state agrees with Philadelphia that “chat” is not “real time electronic communication,” it seems logical that would still be considered a form of “electronic communication.” In that case, subsection 7.3(c) says that solicitation by electronic communications must include the words, “Advertising Material” at the beginning and ending of every electronic communication. Obviously the drafters were thinking about e-mails when they wrote this rule, but how are we supposed to comply with that requirement in chat? This is yet another example of how the rules are struggling to fit the current practice.
While I’m not dumb enough to offer “advice” to any lawyers about how to behave, I will tell you how I’m going to deal with the situation in my practice. If I solicit prospective clients through chat, I’m going to make sure that I throw in the word “Advertising Material” at least once in the conversation. I realize that it won’t comply with black-letter rule, but at least I could claim that I was attempting to comply with the spirit of a rule that unfortunately still does not fit perfectly into the world of social media.
If I told you that it was easy to get clients through social networking you’d be excited. But what if I told you that it was so easy, you could form lawyer-client relationships without even realizing it? Not so appealing now, huh? The reality is that it’s dangerously easy to establish L/C relationships through our interaction in social networking and the prudent attorney needs to be aware of this pitfall.
Consider the “law school” definition of when a L/C relationship is created: If a person seeks advice, and you give advice, in circumstances where a reasonable person would rely upon that advice, a L/C relationship could be created. There’s that reasonable person again– you seem him all over the ethics rules….the reasonable man gets around more than Tiger Woods! OH!Bad jokes aside, think about that definition and consider these two situations that may (or may not have) happened to me– of course, I’ll never admit whether they actually occurred for fear of being smacked upside the head with the ethics stick…In each of these cases we have a person who sought advice, I gave advice and there was a situation where it was reasonable for them to rely on that advice. In both instances you could say, “Congratulations Mr. Teicher, you’ve got a brand new baby client!”
1- I provided a long, detailed answer to a question on LinkedIn in a not-so-unusual attempt at self-promotion. After I posted the answer, the questioner sent me a follow up note to discuss things and I responded privately…
2- An high school friend asked me a “quick legal question” on Facebook. They didn’t quite understand my answer so I had a back-and-forth with them until they got it….
It’s up to you to watch what you say and control how you say it. Avoid creating L/C relationships in SN by responding to online advice-seekers the same way you would if they were standing right in front of you–try to be moderately helpful by talking about their issue vaguely and then artfully avoid giving any actual “advice.” Provide generic-style information that will intrigue the person and encourage them to engage you formally. Just to be safe, it’s probably a good idea to throw in a disclaimer-style statement that tells them that they shouldn’t rely on what you’re saying.
Don’t smirk like that– you know exactly what I mean– you’ve been dealing with this in the face-to-face world for your entire career. That’s the trick– talk to a SN advice seeker the same way you’d talk to them if you met them in person.