Practical Tips for Texas Lawyers on Staying Ethical on Social Media
Confidentiality, Ethics, TechnologyAttorneys have increasingly embraced social media sites like LinkedIn, Twitter, Facebook and Avvo for professional purposes. According to the American Bar Association’s 2020 Legal Technology Survey Report, 77% of all respondents reported using social media for professional purposes. LinkedIn is currently the leading social media platform for attorneys, with 88% of all respondents maintaining a personal LinkedIn presence. And while social media sites are a convenient and (often) affordable way to gain exposure to a larger audience and promote one’s brand, incorrect use of these platforms can place attorneys at risk of running afoul of the ethics rules. In this Article, we offer a few tips for staying ethical when using social media. Many of the tips below incorporate the recently approved amendments to Part VII of the Texas Disciplinary Rules of Professional Conduct, which took effect on July 1, 2021. You can find our more comprehensive summary of the changes here.
1. YOUR POSTS MAY BE ADVERTISING
It’s important to recognize that attorneys’ posts on social media may be construed as advertising. Under the recently amended Rule 7.01(b)(1), an “advertisement” is a “communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.”
So, what are the implications?
Unless the communication falls under one of the exemptions under amended Rule 7.05, the communication will need to comply with the filing requirements for advertising and solicitation communications under Rule 7.04.
This requirement is not as unduly burdensome as it may first appear as Rule 7.05 provides numerous exemptions from the filing requirements. Of particular import here is Rule 7.05(g), which exempts “communications in social media that is either “primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or consists primarily of the type of information commonly found on the professional resumes of lawyers” provided the posts do not expressly offer legal services….”
Takeaway: Review the motivation behind your posts and the nature of the content to determine whether your posts could be considered advertisements under the updated Texas Rules, and whether any of the exemptions from the filing requirements apply.
2. BEFORE POSTING, CHECK IT TWICE FOR POSSIBLE FALSE OR MISLEADING STATEMENTS
While this tip seems intuitively obvious as the prohibition against making false or misleading statements is not new, the ease of using social media lends itself to posting in haste and without adequate review. Additionally, Texas attorneys would be well advised to review the recent changes to the Rule 7.01. One noteworthy change is the expanded definition of a misleading statement, which now includes:
“[a] statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable expectation factual foundation, or if the statement is substantially likely to create unjustified expectations about the results the lawyer can achieve.”
Takeaway: Review the updated Texas Rules to ensure your posts could not be construed as false or misleading statements.
3. KEEP IN MIND SOLICITATION RULES EXTEND TO SOCIAL MEDIA
The amended rules have provided a new definition of solicitation communication under Rule 7.01(b)(2), and clarified that the anti-solicitation ban does, in fact, extend to social media under Rule 7.03(a).
Under the amended rule, a “solicitation communication” is defined as a communication:
“substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to a specific person who has not sought the lawyer’s advice or services, which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter.”
Attorneys are precluded from soliciting clients under amended Rule 7.03(b), “unless the target of the solicitation is: (1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters.”
With this in mind, online communications using tools designed to promote online interaction may be considered solicitation provided the communication was substantially motivated by pecuniary gain and the recipient of the communication does not fall within one of the exceptions under Rule 7.03(b). And, keep in mind that solicitation communications are subject to filing requirements under Rule 7.04.
Takeaway: Before sending any social media communications to any user, review who the intended recipient is, as well as the purpose of the communication. Communications as seemingly innocuous as Facebook “friend requests” or “LinkedIn “invitations” may well constitute a prohibited solicitation provided the communication includes an offer for legal services to a non-lawyer with whom the attorney does not have a pre-existing relationship under Rule 7.03(b).
4. AVOID DISCLOSING CONFIDENTIAL INFORMATION
Social media also creates a potential risk of disclosing (inadvertently or otherwise) confidential information, including the identities of current or former clients. While this seems like a no-brainer, there have been several ethics opinions, as well as court cases where attorneys have found themselves in violation of Duty of Confidentiality under ABA rule 1.6 (Texas Rule 1.05).
For example, can an attorney respond to a former client’s negative comments published online? According to the Professional Ethics Committee for the State Bar of Texas, not if the response would reveal any confidential information. In Opinion 662, the Committee found that “[t]he lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.”
In a similar fact pattern, the Supreme Court of Georgia upheld a public reprimand after a Georgia lawyer published confidential information about a former client in response to the client’s negative online reviews. In a more brazen case, an Illinois assistant public defender was suspended from practice for 60 days for, in part, revealing protected client information on a blog.
Even apparently innocent posts about work may result in disclosure of confidences. In a situation reported to TLIE, a lawyer posted about having a hearing the next day with client who was not cooperating, without naming the client. Unfortunately, a paralegal on the other side was a friend of the lawyer, and this information came in handy at the hearing the following day.
Takeaway: It’s easy to get caught up in the ease of posting, tagging and commenting on social media platforms without much consideration, but lawyers must be careful to avoid posting any information that could conceivably violate confidentiality obligations.
CONCLUSION
Social media can serve as a valuable tool in growing an attorney or firm’s law practice, but do pose ethical risks. Attorneys should take time to review the amended Texas Rules on advertising and solicitation, the type of content they post, as well as their policies on social media to ensure it is used in accordance with the ethics rules.
