YLD offers social media pocket guide for lawyers
Social media has made digital networking second nature to the modern lawyer, but the path is strewn with ethical hazards.
That’s why the Young Lawyers Division is offering a free, easy-to-follow guide to avoid the potential pitfalls: “The Young Lawyers Division Social Media Pocket Guide.”
A joint effort of the YLD and the Bar’s Ethics and Advertising Department, the guide is not intended to be comprehensive, but a “compiled selection” of relevant material.
“Further, the ethics and advertising rules are evolving in nature, and practitioners should always check to see if there are any recent ethics opinions, rules changes or other developments,” the guide warns.
That said, there’s good reason to keep the guide within reach, says YLD Technology Committee Chair Jesse Butler.
Jesse R. Butler
“Sometimes, people don’t even think of what they’re doing online as marketing, but it needs to be looked at through that frame to make sure that you’re complying with the Bar rules,” Butler said. “We tried to address everything that is a common question, we wanted to hopefully be a reference point.”
Using Facebook or other services to purchase ads or to send out targeted, marketing campaigns. You have to know that if you’re purchasing ads to market your legal, professional career, there is the likelihood that you may be subjected to the targeted advertising rules.”
The guide’s question-and-answer format is designed for quick reference: “Do the Advertising Rules Apply to Social Media?” “What are the Basic Advertising Rules?” and “Other Social Media Issues.”
Regarding the first question — it depends.
“Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules,” the guide states. “On the other hand, pages of individual lawyers on social networking sites that are used solely for social purposes (i.e. to maintain social contact with family and close friends) and not for the purpose of marketing legal services, are not subject to the lawyer advertising rules.”
The guide is quick to remind readers that Bar rules regulating lawyer conduct always apply when using social media “even when a communication is not within the purview of the advertising rules.” It refers to Rules 4-4.1 (Truthfulness in Statements to Others); 4-3.3(d) (Extent of Lawyer’s Duties); and 4-8.4(c) (Misconduct).
Separate subheadings address Twitter, Facebook, and the video sharing platforms LinkedIn, YouTube, Vimeo, and TikTok. The guide gets even more granular, offering definitions for such things as a “targeted” direct mail, email, text, or social media, as well as filing requirements and exemptions to filing requirements.
Another hot topic, negative online reviews, is addressed.
“A lawyer may not disclose information relating to a client’s representation in response to a negative online review, but may respond with a general statement that the lawyer is not permitted to respond as the lawyer would wish, but that the online review is neither fair nor accurate.”
The guide includes Bar-suggested responses that don’t risk running afoul of Rule 4-1.6, such as:
“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”
What about content posted on a lawyer’s page?
The guide has an answer: “Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.”
And the guide addresses the awkward question of “friending” a judge.
“The Florida Supreme Court has expressed that lawyers and Judges should exercise caution when connecting on social media. The Court has ruled that a judge is not automatically disqualified from a case based solely on a Facebook friendship with one of the attorneys. However, the Court held that additional facts could lead to disqualification.”
Butler says the guide will be updated.
“The nature of technology is that things evolve,” he said.
