The Bar Wants to See Your Facebook Page…

The first shot has been fired in what will certainly become the messiest situation to hit attorney ethics
in decades. Kentucky wants to monitor attorney’s Facebook pages. As my daughter would say,
O…M…G…
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 make about
yourself or your services.
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 statements
cross the line and become an “advertisement” that’s regulated by Rule 7.2?
Kentucky redefined the term advertisement to make it much more broad. What’s scary is that
according to the definition in Kentucky’s proposed regulation, you could be “advertising” by simply
communicating your NAME to another person! Granted, they try to carve out an exception by stating
that “communications of a non-legal nature are not advertisements” but the obvious question is, “Who
determines if your statements are of a non-legal nature?” In Kentucky, the answer is, the Advertising
Commission. Now you’re probably wondering, “What’s the criteria they will use?” Well, your guess is
as good as mine.
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]
ProblemThe first shot has been fired in what will certainly become the messiest situation to hit attorney ethics in decades. Kentucky wants to monitor attorneys’ Facebook pages. As my daughter would say, O…M…G…

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

make about yourself or your services.

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

statements cross the line and become an “advertisement” that’s regulated by Rule 7.2? Kentucky redefined the term advertisement to make it much more broad. What’s scary is that according to the definition in Kentucky’s proposed regulation, you could be “advertising” by simply communicating your NAME to another person! Granted, they try to carve out an exception by stating that “communications of a non-legal nature are not advertisements” but the obvious question is, “Who determines if your statements are of a non-legal nature?” In Kentucky, the answer is, the Advertising Commission. Now you’re probably wondering, “What’s the criteria they will use?” Well, your guess is as good as mine.

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]

Philly Says Solicitation by Chat May Be Okay

No SolicitationThere’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.

Two Ethics Opinions on Social Media Investigations

FB GLassesMost lawyers are already using information found on social media sites as evidence in the courtroom.  The New York Bar Association Committee on Professional Ethics recently issued an opinion confirming that gathering that information is permitted, if you’re viewing public pages (Opinion 843, 9/10/10).  See the New York Opinion Here.

In the New York opinion the question was whether the lawyer could access pages of an adverse party if they’re only accessing the public portion of the page- no friending involved.  The NY Bar said that’s okay.

“Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted.  Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.

That’s a little different from the opinion issued by the Philadelphia Bar (Opinion 2009-02).  There, a lawyer asked whether she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for impeaching the witness at trial.  The third party would friend the witness purportedly for social reasons, though the real reason would be to collect the information for trial.

The Philadelphia Committee determined that the proposed “friending” is deception in violation of Rules 8.4 and 4.1, and also a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit).   See the Philadelphia Opinion Here

I think it’s important to consider that term “deception” from the Philadelphia opinion.  I often tell lawyers that the best approach when using social media is to “Be Smart.”  The concept of avoiding deception puts a little meat on those bones.

Facebook “Places” Isn’t Going to Last

FB vs. 4sqI don’t think the new Facebook “Places” feature will last.  I get it– it’s  FB’s attempt at recreating Four Square. Interestingly, it’s yet another way that FB is keeping you on their site– with each new feature they give you less reason to leave the platform in order to enjoy a full social media experience.  But Places is going to drive the rank and file FB user nuts.

Twitter users expect some chaos.  There are multiple tweets streaming at every moment and less meaningful postings seem to be an accepted part of the Twitter-verse.  Not so in Facebook.  I think that FB users will be less tolerant of the somewhat annoying check-ins.

People are going to get angry and hide the feature pretty quickly- heck, I’m on the verge of doing that myself.  I wonder how that’s going to be received by the all-powerful gods of Facebook because I’m sure they can tell when things are being hidden.  I wouldn’t be surprised if that negatively impacts their ability to use the feature to raise revenue.  I’m not sure how- it’s just where my gut is leading me.

Competence = Social Media

social-media-bandwagonIt’s coming– in a very short time there’s going to be a change in the competence standard. It’s not necessarily going to be an official amendment to the rules. Before long, however, courts and disciplinary boards throughout the country are going to require that attorneys have a basic understanding of social media in order to demonstrate the minimum level of attorney competence. Sound crazy? Think of it this way– would you consider an attorney “competent” if they couldn’t navigate the internet or use e-mail? Of course not. Well it’s going to be the same thing with social media. So if you’re not involved….better start learning.

By the way, these short blog posts are all you’ll get out of me from now on. After all– who has time to read anymore?

Guidance for Attorneys — “Be Smart” in Social Media

deceptionWhat I usually say when asked how an attorney can stay out of ethical trouble when engaging in social networking is….”Be Smart.” Although that isn’t very tangible advice, the Philadelphia Bar Association Professional Guidance Committee issued an opinion in 2009 that helps give my advice a little more bite. You can see the opinion here http://bit.ly/agdDpS

Basically, the Philly Bar was asked to opine on the issue of whether an attorney could ask a third person to “friend” someone on Facebook in advance of litigation. Specifically, that person would connect with someone and claim that it’s motivated by friendship while the true, admitted motive for connecting is to gather information to be used against that person in a lawsuit.

The Committee said that the connection would be a violation of Rule 8.4(c) because it was deceptive. They stated that the connection would pass muster if the true reason for the desire to connect was revealed, though the Committee acknowledged the practical reality that no one would accept the connection if they understood the true motivation.

What’s key here is that the decision turned on the concept of “deception.” These particular actions in the social networking world would cause an ethical problem because they were done in a deceptive manner. Thus, the Philly Bar opinion gives lawyers some tangible direction about how an attorney can “Be Smart” when engaging in social networking– don’t be deceptive.

The Ethics Code Should Mention Social Media

 
We need to take a broader view of what it means to educate existing attorneys.  It’s time that we reform the ethics rules to include language that gives more direction to attorneys on wgot ethicshat type of activity will make them better lawyers.

In that regard it’s critical that we add language to the commentary that encourages lawyers to stay engaged with new technology like social media.  Platforms that started out as purely “social networking” are quickly becoming a critical part of the overall practice of law.  The simple fact is that they’re not going anywhere– they’re just going to increase in prominence. 

If something is critical to the practice of law, then the ethics rules should encourage engagement with that subject matter.  Technology is a perfect example– you simply can not remain a competent attorney if you let the technological world pass you by.  Heck, no one would be considered “competent” if they couldn’t operate a mouse or send an e-mail.  

The ethics rules should 
encourage attorneys to engage in activity that we want to promote.  The code is always going to be list of what we can’t do, but a more complete code will also act as a guide for preferred behavior.  Let’s get a reference to technology in there! 

LinkedIn is Stupid

linkedin_outListen, I tried.  Honestly, I really did.  I tried to use LinkedIn, but after about a year of participating, I’ve come to a decision.  Almost everything about it is stupid and a waste of my time.

The most intriguing part of social networking– what’s differentiated it mostly from other forms of networking, is selflessness.  People are involved in the honest exchange of information with the goal of helping others.  The people who thrive are the most authentic and the ones that provide value to others.   LinkedIn is the antithesis of that. 

90% of everything on LinkedIn is self serving.  Don’t get me wrong, I know we’re all out there trying to get exposure and make a buck.  But what drives me crazy about LinkedIn is that all of the postings are created so that they appear to be bona fide attempts at providing valuable information, but anyone with half-a-brain can see that they’re not.  Heck, the only people asking questions are coaches and consultants!   The questions are thinly disguised as helpful, but they’re really just blatant attempts at getting attention.  It’s outright insulting. 

Even the discussions in the groups are a waste.  I’ve seen two…TWO…questions that were honest requests for information, one of which was an unabashed, direct request for legal advice (and I hope no one provided an answer or you may be in ethical hot water).  Are there a few exceptions?  Perhaps a couple of genuinely helpful groups or some serious requests for important information?  Of course.  But those exceptions are just that– exceptions and they’re very much in the minority.

LinkedIn is valuable for one thing– to get people in your network to introduce you to people that you may not know (and to do the same for others).  For that reason alone I’ll stay engaged.  The rest of the platform is garbage.