Oct 162013

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Pennsylvania Ethics Rules on Lawyers’ Social Media Posts

For lawyers practicing in Pennsylvania, the question is: do state ethics rules govern social media postings?

The short answer is that in the context of lawyer internet advertising, the state has the constitutional right to regulate commercial speech, or that which beckons business. In Pennsylvania, if your internet marketing contains commercial speech, then you must comply with Pennsylvania Rules of Professional Conduct 7.1 through 7.5.

The social media post “[a]nother great victory in court today! My client is delighted. Who wants to be next?” would appear to be commercial speech because it beckons for business by saying “who wants to be next”.  Therefore, the state has a right to regulate it.

The relevant rule in this situation is Rule 7.1, which relates to communications concerning a lawyer’s service and provides:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment 3 of Rule 7.1 provides:

(3) An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

Because the post talks about a great victory and how the client was satisfied, it could be deemed as a client testimonial.  Pursuant to comment 3, a client testimonial should include an appropriate disclaimer to preclude a finding that a statement is likely to create unjustified expectations.

Further, the statement “who wants to be next” gives the unjustified opinion that the prospective client will be victorious which is in violation of Rule 7.1.  Again, a disclaimer is needed if a lawyer wants to post this or a similar statement on a social media site.

As more lawyers and law firms engage in social media and employ internet marketing campaigns, many will probably violate state ethics rules.  Before you post updates on social media profiles or run an internet marketing campaign, make sure your website complies with the Rules of Professional Conduct.