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Oct 162013
 
Social Media Consulting

Click here for part one of this article.

Does the following social media post violate Professional Ethics Rules?

“Another great victory in court today! My client is delighted. Who wants to be next?”

California’s Standing Committee on Professional Responsibility certainly thought so and looked at Rule 1-400 of California Rules of Professional Conduct to come to that conclusion.

Rule 1-400 defines communication as the following:

(A) For purposes of this rule, “communication” means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following:

(1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or
(2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or
(3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or
(4) Any unsolicited correspondence from a member or law firm directed to any person or entity.

The California ethics panel found that Rule 1-400 of California’s Rules of Professional Conduct applied to the lawyer’s social media post because two conditions were met:

  1. There was a “communication,” which the panel suggested should apply in the broadest sense of the word, and
  2. The communication in the post relates to the lawyer’s “availability for professional employment.”

The panel went on to say that if the lawyer only posted “Another great victory in court today”, Rule 1-400 would not be applicable.  It is the second part of the post that triggers the application of Rule 1-400.  The post “[my] client is delighted. Who wants to be next?” meets the definition of a ‘communication’ because it suggests the lawyer’s availability for professional employment.

Because the post is subject to the rule, it violated the California ethics rules concerning client testimonials because it did not contain an express disclaimer.

The panel further provided that the post also contained “guarantees, warranties, or predictions regarding the result of the representation” in violation of the ethics rules. The post said “victory”, which could be “interpreted as asking who wants to be the next victorious client.”

Are The Following Posts Subject to Rule 1-400?

The panel further examined 4 posts and explained why each post was or was not subject to the rule:

1.  “Case finally over. Unanimous verdict! Celebrating tonight.”

If you said not subject to the rule, you would be correct. This is not a communication because it just discusses a victory without offering the attorney’s availability for professional employment.

2.  “Won a million dollar verdict. Tell your friends and check out my website.”

This post would be subject to Rule 1-400 as it obviously offers professional services.

3. “Won another personal injury case. Call me for a free consultation.”

Again, subject to Rule 1-400 because it is a “communication”.

4.  “Just published an article on wage and hour breaks. Let me know if you would like a copy.”

Not subject to the rule because it is merely relaying the fact that the attorney wrote an article and not offering professional services.

Click here for part 3 of this article which discusses how the Pennsylvania Rules of Professional Conduct apply to lawyers’ use of social media.