The Florida Bar

Florida Bar Journal

Be Tweet Life and Death: Utilizing Social Media While Avoiding Legal Malpractice

Young Lawyers Division

In the last 15 years, advanced technology has enabled people to interact and share information in ways that were previously nonexistent or widely unavailable.1 This technological expansion has led to an explosion of social media use all across the world. In the U.S., not only are 84 percent of all adults “digital,” meaning they have a smartphone, tablet, or computer, but social media is now the top worldwide Internet activity.2 Lawyers, like everyone else, are not immune to this technological expansion. In 2014, the American Bar Association found that 75 percent of lawyers reported using social media for career development and networking.3 While it is true that a majority of lawyers are engaging in social media, many of them are either engaging social media inefficiently or reluctantly.4 Due to its omnipresence and prominence, lawyers can no longer afford the luxury of turning a blind eye to social media. As such, all lawyers should take steps to educate themselves on the impacts, advantages, and repercussions associated with it.

Background: What is Social Media?
Social media is defined as a series of websites and applications (platforms) that enable users to create and share content or to participate in social networking.5 The “big three” of social media are Facebook, Twitter, and LinkedIn. In 2014, Facebook reported 1.39 billion monthly active users;6 Twitter reported 288 million monthly active users with 500 million tweets7 being sent per day;8 and LinkedIn reported 300 million users.9 These are astounding numbers, and they send one powerful message: Social media is strong and it is here to stay, for it transcends age, gender, race, religion, politics, and economics.

Blawgs
Social media is user-centered and it has platforms for every taste. For lawyers who enjoy writing, blawgs10 presents a great entryway to the social media game. Blawgs are among the most established platforms within the legal community — the ABA even has a blawg directory with its very own 100 Hall of Fame .11 A lawyer can use blawgs to educate clients, peers, and possibly gain prospective clients. We live in a world where individuals utilize search engines to identify their ailments on WebMD12 and where they will conduct their own online research prior to seeking professional legal help. An effective blawg that showcases the lawyer’s expertise is not only seen by other lawyers and prospective employers, but it is also seen by potential clients — who may even solicit the lawyer’s business after reading his or her blawg. In order to make the most out of blawgs, lawyers should use relevant tags in their postings in order to bring their blawgs to the top — blawgs with the most efficient tags and titles will be part of the top results of search engines. When choosing the content of their blawgs, lawyers should be mindful that while blawgs are sometimes perceived as “informal” writing, they still face the same legal and ethical concerns as print marketing and advertising.13

Twitter
For lawyers who prefer short and precise statements, there is Twitter — where each posting or tweet has a 140-character limit. Many lawyers are apprehensive about Twitter because they believe that Twitter is limited to frivolous information — no lawyer really wants to know what their fellow colleague had for breakfast. Nevertheless, Twitter offers much more for it can keep lawyers aware of relevant information and it can also connect them to other lawyers, academics, experts, businesses, organizations, and individuals who share their same interests. The opportunities for interaction in Twitter are endless, and lawyers have plenty to choose from. With Twitter, lawyers have the opportunity to interact with the Internal Revenue Service (@IRSnews), the U.S. Supreme Court (@USSupremeCourt), and The Florida Bar (@theflabar).

Lawyers who have dominated the Twitter-sphere usually have a large number of Twitter followers and are often perceived as trusted and reliable intelligence agents in their area of law.14 These lawyers build marketable environments by effectively using Twitter. These lawyers are definitely not tweeting about what they had for breakfast; instead, they are tweeting about the latest conference they attended, the latest article that caught their interest, and the articles that they themselves — or their firm — have written. For example, a lawyer tagging a tweet with the hashtag15 # SocialMediaConference2015 not only connects with other individuals attending the conference, but also showcases to others that the lawyer has attended the conference or, alternatively, that the lawyer is aware of the different events that are occurring in the lawyer’s area of law. Twitter can benefit lawyers in a myriad of ways: It allows them to 1) follow publications relevant to their areas; 2) follow and promote professional organizations and conferences; 3) receive instantaneous information updates on different decisions, rules, and regulations; and 4) it allows a lawyer to be regarded as a competent legal professional by future clients.

LinkedIn
LinkedIn is the most popular social media platform among lawyers for professional use.16

Lawyers place their professional resume online and future clients and employers measure the trustworthiness and effectiveness of a lawyer by reviewing the strength of their LinkedIn network.17 LinkedIn serves as the lawyer’s online resume and lawyers can list their education, previous employment, awards, recommendations, and skills. However, when it comes to listing skills and expertise on LinkedIn, lawyers should only list specific skills if they are board certified (the same applies for blawgs, Twitter, Facebook, and all other social media platforms).18 In 2013, The Florida Bar contacted LinkedIn in order to resolve the “specialization” conundrum that clearly violated Florida Bar rules. The rules only permit board certified lawyers to claim specialization or expertise in a legal area.19 In 2014, LinkedIn officials positively responded to the Bar’s concern and allowed account holders to change the controversial headings from “specialties” and “expertise” to “skills,” which present no violation to the rules.20

Facebook
With over one billion users, Facebook is the most widely used social platform in the world. However, unlike blawgs, LinkedIn, and Twitter, it is very difficult to differentiate between the professional and personal sphere. While Facebook at times may seem too personal for many lawyers, one billion is a colossal number and simply a number that lawyers cannot disregard if they want to actively and proficiently engage with their peers and clients.21

The first rule with Facebook, as with all the social networks, is that everything is public. Even if lawyers have their accounts on private, their accounts are still available to all within their networks — anything can be immortalized with a screenshot — and, as such, lawyers should use thoughtfulness when posting to their personal accounts. Second, accounts are for individuals and pages are for law firms, solo attorneys, or individual lawyers who strictly want to showcase themselves in a professional capacity. For law firms and for lawyers who want to use Facebook for professional purposes, Facebook allows them to remain continuously on their audience’s radar. The beauty of Facebook — with its over one billion users — is that a lawyer’s content will spread like wildfire. Once any individual likes or shares any content found on the lawyer’s page, this interaction will instantaneously appear in the individual’s scrolling newsfeed and will permanently remain on the individual’s Facebook profile. Given the fact that the average Facebook adult user has 338 Facebook friends,22 lawyers who post on Facebook have a wide potential exposure that comes at virtually zero cost.23

The Tweet of Death: Social Media and Malpractice
Social media is becoming a significant source of traffic across the Internet as consumers increasingly use sites like Facebook as discovery platforms.24 While it is important for lawyers to utilize social media in order to remain relevant in today’s market, lawyers should be very careful of their public and private presence while utilizing social media. In 2010, the Illinois Supreme Court suspended an assistant public defender from practice for 60 days for blogging about clients.25 In Kansas, a lawyer was subject to disciplinary proceedings for communicating via Facebook with an unrepresented party.26 Needless to say, when engaging in social media, lawyers should always follow the rules of professional conduct within their specific jurisdiction. Just in case this wasn’t obvious, The Florida Bar has explicitly announced that “all forms of communication in any print or electronic forum,” including “websites, social networking, and video sharing media,” are subject to the lawyer advertising rules.27

On April 16, 2013, The Florida Bar Standing Committee on Advertising (SCA) issued a series of advertising guidelines for networking sites.28 The committee stated that networking sites used by lawyers in their personal capacity, to maintain contact with family and close friends, are not subject to the lawyer advertising rules.29 However, networking sites that are used to promote the lawyer or the law firm’s practice are subject to the advertising rules and must comply with all of the general regulations set forth in Rul. Reg. Fla. Bar 4-7.11 through 4-7.18 and 4-7.21.30 While a lawyer’s page or personal account on a social network site does not have to be filed with The Florida Bar for review, a banner advertisement posted by a lawyer on a social networking site must be filed for review unless the advertisement meets the safe harbor limitation in Rule 4-7.16.31 Any lawyer practicing in Florida would do well to check The Florida Bar’s Quick Reference Checklist for Websites, which via Rule 4.7-11, is applicable to social networks as well.32

When interacting with other users on social media sites, lawyers should be cautious not only about what they themselves post, but also what others may post about them. The Florida Bar requires that a lawyer should remove third-party postings on the lawyer’s page that violate the rules of professional conduct.33 The Florida Bar also requires lawyers to ask third parties to remove any posts that violate the rules that are posted on a page or an account that the lawyer does not control — in cases that the third party does not comply, the lawyer will not be liable for the content.34

All lawyers should refrain from adding users on social media platform since this can be perceived as solicitation.35 In Florida, invitations or friend requests sent by a lawyer directly from a social media platform to other users are considered solicitations and are in violation of Rule 4-7.18(a).36 However, if the lawyer sends a friend request or invitation to a “current client, former client, relative,” or someone with whom he or she has established a prior professional relationship, the friend request or invitation will not be considered a violation of Rule 4-7.18(a). Thus, the best policy for lawyers in this aspect of social media is to take a passive role and wait for the users to commence the “friending” process.

Prior to the 2013 rule amendments, the use of testimonials were prohibited by The Florida Bar.37 However, after the 2013 rule amendments, limited forms of testimonials are now permitted.38 In order for testimonials to be permitted, they must meet the following requirements: 1) The person making the testimonial must be qualified to evaluate the lawyer; 2) the testimonial must be the actual experience of the person making the testimonial; 3) the information provided by the testimonial must be representative of what the clients of the lawyer or law firm generally experience; 4) the lawyer may not write or draft the testimonial; 5) the person making the testimonial may receive nothing of value in exchange for the testimonial. If a lawyer is practicing in Florida and is asking for a review or endorsement via any of the social media platforms — LinkedIn, Twitter, Facebook, etc. — that lawyer must be sure to follow the requirements set above in order to escape any liability or malpractice action.

Conclusion
Social media is a magnificent tool that all lawyers can use to advance their practice and their interests. Social media presents a cost-effective way to advertise and reach out to clients who are increasingly becoming more active in social media every day. Yet, with great power comes great responsibility — and a caveat. Just because social media use may seem informal, it does not mean that it is not subject to the same rules and regulations as other types of formal communications and advertising. All lawyers should go ahead and join in the social media game…and for all of those lawyers who are doubting themselves, remember: If the IRS can do it, so can you.

1 Securities & Exchange Commission, Investment Adviser Use of Social Media, (March 20, 2015).

2 Emily Adler, Social Media Engagement, Business Insider (Sept. 2014), http://www.businessinsider.com/social-media-engagement-statistics-2013-12#ixzz3VuJJKegT .

3 Allison Shields, Blogging and Social Media, ABA Tech Report 2014 (2015), available at http://www.americanbar.org/publications/techreport/2014/blogging-and-social-media.html.

4  Managing Partner Forum, Managing Partner Social Media Survey, Part 1 (Sept. 13, 2014) (The Managing Partner Forum revealed that while 39 percent of managing partners responded positively to social media, 35.6 percent of them were dissatisfied with social media and regarded it as a “necessary evil,” 10 percent were “unsure” about social media and 1 percent perceived social media as a “passing fad — just like CB radio”), available at http://www.jaffepr.com/sites/default/files/MP_SocialMedia_Survey_part1.pdf.

5 Oxford University Press, Social Media (March 2015), available at http://www.oxfordreference.com/view/10.1093/oi/authority.20110810105901867 .

6 Facebook, Company Info (2015), https://newsroom.fb.com/company-info/.

7 A “tweet” is a message posted on Twitter. Tweets are limited to 140 characters. “Twitter,” Encyclopaedia Britannica Online Academic Edition (2015).

8 Twitter, About Twitter (2015), https://about.twitter.com/company.

9 LinkedIn, LinkedIn Announces Fourth Quarter and Full Year 2014 Results (2015),
https://press.linkedin.com/site-resources/news-releases/2015/linkedin-announces-fourth-quarter-and-full-year-2014-results .

10 Paul Lambert, Social Networking: Law, Rights and Policy 16 (2014) (“Blawgs” are blogs that relate specifically to law or particular legal subjects).

11 American Bar Association, 2014 Blawg 100 Hall of Fame (Dec. 2014) , http://www.abajournal.com/blawgs/.

12 Matthew Flamm, Everyday Health Closes in on WebMD’s Online Dominance, Crain’s New York Business (2012), available at http://www.crainsnewyork.com/article/20120610/SUB/306109984/everyday-health-closes-in-on-webmds-online-dominance .

13 Paul Lambert, Social Networking: Law, Rights and Policy 17 (2014).

14 Kevin O’Keefe, Are Lawyers Missing An Opportunity To Learn Via Twitter? (Feb. 22, 2014), http://kevin.lexblog.com/2014/02/22/are-lawyers-missing-an-opportunity-to-learn-via-twitter

15 Twitter allows users to share links, pictures, and even videos via tweets, and also arranges different topics with the use of a hashtag represented by the pound sign. When a hashtag is placed in front of a word, it allows any user to click on it and find all the other tweets with the same #hashtag.

16 Allison Shields, Blogging and Social Media, ABA Tech Report 2014 (2015) (among those lawyers who do continue to use social media for professional purposes, LinkedIn continues to be the most popular at almost 75 percent overall), available at http://www.americanbar.org/publications/techreport/2014/blogging-and-social-media.html.

17 Larry Bodine, LinkedIn (or Left Out) for Lawyers (Sept. 2013), http://blog.larrybodine.com/2013/09/articles/social-media/linkedin-or-left-out-for-lawyers/.

18 T he Florida Bar, Quick Reference Checklist – Websites, /TFB/TFBResources.nsf/Attachments/4CA9D716DD67F5448525769D005574A3/$FILE/Checklist%20-%20Website.pdf?OpenElement .

19 LinkedIn Concerns Resolved, The Florida Bar News, April 1, 2014, available at /DIVCOM/JN/jnnews01.nsf/cb53c80c8fabd49d85256b5900678f6c/98333b3a25befaca85257ca50044bd3f!OpenDocument&Highlight=0,LinkedIn.

20 Id.

21 Experian Marketing Services, Social Media Best Practices Guide-2014 (2014), http://www.experian.com/marketing-services/integrated-social-media.html (89 percent of digital consumers access social media during a typical week. Among those, nearly a quarter share their views about products and brands and nearly a third are influenced by product reviews and advertising they see on social media).

22 Aaron Smith, Six New Facts About Facebook, Pew Research Center (Feb. 2014), available at http://www.pewresearch.org/fact-tank/2014/02/03/6-new-facts-about-facebook/.

23 Id. Seventy percent of social media users access networks like Facebook, Instagram, and Twitter at least daily.

24 Experian Marketing Services, The 2014 Digital Marketer: Benchmark and Trend Report (2014), https://www.experianplc.com/media/news/2014/experian-marketing-services-2014-digital-marketer-report-shows-that-social-media-continues-to-grow/ .

25 In re Disciplinary Proceedings Against Peshek, 334 Wis.2d 373 (Wis. 2011).

26 In re Gamble, 338 P.3d 576 (Kan. 2014).

27 Rul. Reg. Fla. Bar 4-7.11.

28 The Florida Bar, The Florida Bar Standing Committee on Advertising Guidelines for Networking Sites (April 16, 2013), available at /TFB/TFBResources.nsf/Attachments/18BC39758BB54A5985257B590063EDA8/$FILE/Guidelines%20-%20Social%20Networking%20Sites.pdf?OpenElement.

29 Id.

30 Regulations include prohibitions against any misleading information, which includes references to past results that are not objectively verifiable, predictions or guaranties of results, and testimonials that fail to comply with the requirements listed in Rule 4-7.13(b)(8). Regulations also include prohibitions against statements characterizing skills, experience, reputation, or record unless they are objectively verifiable. Lawyers and law firms should review the lawyer advertising rules in their entirety to comply with their requirements. Additional information is available in the Handbook on Lawyer Advertising and Solicitation on The Florida Bar website. Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 Christina Vassiliou Harvey, Mac R. McCoy & Brook Sneath, 10 Tips for Avoiding Ethical Lapses When Using Social Media, American Bar Association (Jan. 2014) (for example, a Facebook “friend request” or LinkedIn “invitation” that offers to provide legal services to a nonlawyer with whom the sending lawyer does not have an existing relationship may very well rise to the level of a prohibited solicitation.), available at http://www.americanbar.org/publications/blt/2014/01/03_harvey.html .

36 The Florida Bar, The Florida Bar Standing Committee on Advertising Guidelines for Networking Sites (April 16, 2013), available at /TFB/TFBResources.nsf/Attachments/18BC39758BB54A5985257B590063EDA8/$FILE/Guidelines%20-%20Social%20Networking%20Sites.pdf?OpenElement (A lawyer may not solicit prospective clients in a chat room, but a lawyer may respond to specific questions posed to them in chat rooms; cautions lawyers against inadvertently forming attorney client relationships with computer users.).

37 See Rul. Reg. Fla. Bar 4-7.2(c)(1)-(3).

38 See Rul. Reg. Fla. Bar 4-7.13(b)(8).

Bonie Montalvo Navarrete is the winner of the 2015 Law Student Essay Contest sponsored by Florida Lawyers Mutual Insurance Company, the Young Lawyers Division of The Florida Bar, and the Henry Latimer Center for Professionalism. The essay contest, which is in its fifth year, was created to raise law students’ awareness of practice risks surrounding current issues of concern to the legal profession and best practices to manage identified risks.

Navarrete is a second-year law student at University of Florida Levin College of Law.

This column is submitted on behalf of the Young Lawyers Division, Gordon J. Glover, president.

Young Lawyers Division