Slides of presentation to the Austin Bar Association Solo/Small Firm Section on October 24, 2013

1. Social Media and Ethics Rules:
Dos and Don’ts
Sara Foskitt
(@foskitt & @FoskittRealty)
D. Todd Smith
(@dtoddsmith & @SmithLawGroup)
Michelle Cheng
(@foodiethenew40 & @AustinTrialLaw)

2. Overview
• Focus is on social media in context of
advertising rules
• Why should lawyers use social media to
promote their practices?
• How can it be done ethically?

3. Am I Likely to Benefit?
• Does your law firm have an internet
presence? How else do clients find you?
• Would you like to establish a niche or a
―personal brand‖?

4. Advertising Rules: Part VII of the TDRPC
• Purpose is to protect the public from
false, misleading, and deceptive
communications
• Rules specify conduct for attorneys who
promote services to public
• Violations subject lawyers to discipline

5. Advertising Rules: Part VII of the TDRPC
• New: Violations may also subject lawyers
to liability under civil barratry statute

6. Why Market Via the Internet?
• As of 12/2011, the lawyer/resident ratio in
Texas was 1/280
• We have more than 86,000 active lawyers
and add 3,000 new lawyers per year
• Lawyering is becoming more of a
commodity

7. Why Market Via the Internet?
• More competition for less work requires
more creative and effective marketing
• The Internet is a cheap and effective way
to reach large numbers of potential clients

8. Why Use Social Media?
• Establish personal/firm brand and market
reach
• Share expertise and news
• Increase firm visibility and traffic
• Create goodwill by pointing to helpful
resources
• Can show a little of yourself and help
potential clients get to ―know‖ you

9. Social Media Platforms for Lawyers
•
•
•
•
•
Blogs
Twitter
Facebook
LinkedIn
Google Plus
• YouTube/Vimeo
• Avvo
• JD Supra
• Texas Bar Circle
• Lawyers.com
•
•
•
•
•
•
•
Legal OnRamp
Martindale-Hubbell
LawLink
Justia
Yelp
Foursquare
Pinterest
A few examples…

14. Facebook – Personal Page
or Business Page?

16. Google+

17. Google+ - Personal Page vs.
Business Page?

22. Examples of Social Media’s Reach

23. Examples of Social Media’s Reach
Thanks, Jessie Tilton!

24. The Power of Social Media
• More than 900 million active Facebook users –
over half log on to FB on any given day.
• 20% of all internet users use Twitter or another
service to share or view updates
• Business use: Twitter up 250%, Facebook up
192% since Spring 2009
• No fad—a fundamental shift in communication

25. Social Media Etiquette
•
•
•
•
Find your niche and focus on that area
Don’t sell
Don’t over-post
The more positive you are, the more people
will want to do business with you
• Be careful who you add as your friend
• Use common sense

26. What You Post May Hurt You
Source: Forbes

27. What You Post May Hurt You
Source: Forbes

28. And Then There Are the Advertising Rules
• Rule 7.02 prohibits false, misleading, or
deceptive communications
– Material misrepresentations or omissions
– Guaranteeing results or creating unjustified
expectations
• Rules 7.03 & 7.05 govern prohibited
solicitations (including digital) and payments
• Rule 7.04 & 7.07 cover advertisements and
filing requirements

29. Advertising Rules and Social Media
• Filing requirement applies when:
– electronic communication addresses the
qualifications or the services of lawyer or firm
– not exempt under DR 7.07(e)
– generally available to the public
• Communicating attorney must file the
communication with the ARC before or
concurrently with first dissemination

31. Evolution of Ethical Concerns
• In 2005, SCOTX expressly applied the
Advertising Rules to electronic or digital
communications
• Blogging took root shortly thereafter, followed
by Facebook, Twitter, and others
• No one knew for sure how the ARs would apply
to social media
• Issue has reached new importance, since new
statute treats violation of ARs as barratry

32. The ARC’s Take: New Comment 17
• In 2010, the Advertising Review Committee
released revised Interpretive Comment 17
• Purpose was to address issues with
different kinds of Internet-based
advertisements, including blogs, social
media, and web-based display ads

33. The ARC’s Take: New Comment 17
• Focus is whether they are advertisements
subject to filing requirements, but helps
guide behavior on social media for all
purposes

34. IC 17 on Blogs and Status Updates
―Blogs or status updates considered to be
educational or informational in nature are
not required to be filed with the Advertising
Review Department. However, attorneys
should be careful to ensure that such
postings to not meet the definition of an
advertisement subject to the filing
requirements.‖

35. IC 17 on Landing Pages
―Landing pages such as those on
Facebook, Twitter, LinkedIn, etc. where the
landing page is generally available to the
public are advertisements. Where access
is limited to existing clients and personal
friends, filing with the Advertising Review
Department is not required.‖

36. What Does This Mean?
• Electronic communications like social
media posts are advertisements in the
public media subject to the filing
requirements of DR 7.07 unless exempt
• New Pitfall: Gov’t Code 82.065 now
provides that solicitation conduct violating
disciplinary rules constitutes barratry

37. What Does This Mean?
• Violate the DRs in social media = exposing
oneself to barratry under new statute
• Fee forfeiture, damages, and monetary
penalty are among remedies available—
and they are not limited to actual clients

38. Where Is the Line?
• Exercise caution about providing information beyond
what is exempt under DR 7.07(e)
–
–
–
–
–
–
–
–
–
―Tombstone‖ information
Areas of practice
Dates of admission
Technical and professional licenses
Foreign language ability
Prepaid group legal service plans
Acceptance of credit cards
Initial consultation fee or fee schedule
Sponsorship of charitable, civic, or community program or
event or PSA
• None of this needs to go before Ad Review

39. Where Is the Line?
• But the ARC says filing is not required for
blogs or status updates that are merely
educational or informative in nature
• The most common types of legal-related blog
and social-media posts do not trigger filing
requirements or related rules, as long as the
content would not otherwise be considered an
advertisement and is not false or misleading
• Again, exercising good judgment is key

40. Do These Updates Pass Muster Under
the Ethical Rules?
• ―Just published an article on wage and hour
breaks. Let me know if you would like a copy‖
Merely states information about an article the
author published. This is OK.
• ―Case finally over. Unanimous verdict!
Celebrating tonight.‖
Factual, so probably OK.

41. Do These Updates Pass Muster Under
the Ethical Rules?
• ―Another great victory in court today! My
client is delighted. Who wants to be next?‖
―My client is delighted‖ could be a client
testimonial.
―Who wants to be next‖ is not exempt and
arguably solicits the lawyer’s services.

42. Do These Updates Pass Muster Under
the Ethical Rules?
• ―Won a million dollar verdict. Tell your friends to
check out my website.‖
Construed together, this could be read as
soliciting employment.
• ―Won another personal injury case. Call me for a
free consultation.‖
Offer for free consultation may be read as
soliciting employment.

43. LinkedIn Example of Issues
Caution: 7.02(4) prohibits comparisons to other lawyer’s
services, unless substantiated by verifiable objective data.
This is probably ok.

45. Gene Major, director of the State Bar of Texas
Attorney Compliance Division, …says he thinks
LinkedIn endorsements comply with advertising
rules, because there's nothing
"false, misleading or deceptive" about
another person clicking a button to indicate
a lawyer is competent in an area of law.‖

46. • DR 7.03(a)
violations?

47. Not unethical. Good marketing, until she says ―hire me.‖
Could be breaching
confidentiality?

48. Social Media and Ethics Rules:
Dos and Don’ts
Sara Foskitt
(@foskitt & @FoskittRealty)
D. Todd Smith
(@dtoddsmith & @SmithLawGroup)
Michelle Cheng
(@foodiethenew40 & @AustinTrialLaw)