Examples of Using Social Media to Obtain Clients
There are various ways to use social media to contact potential clients, and the method of contact varies, depending on the type of platform.
LinkedIn (LI) allows a user to email someone already within their network. To contact anyone outside the network (strangers), the user must first send a request to connect.
Facebook (FB) allows a user to email a connection (someone in their network), and also email strangers (paying a $1.00 fee sends the email directly in the recipient’s mailbox). Live chat with video capability with connections is also possible.
Google Plus (GP) allows a user to live chat with those in circles and those outside of circles (strangers). Video capability is also possible.
Here are three examples of using social media to solicit clients within the confines of Rule 7.3:
Ex 1: You are a family lawyer who heard through the grapevine that a friend of a friend is going through a divorce. Can you FB friend or instant message that person? If the person is already a member of your network, can you instant message them using LI or FB (i.e., “If you need family law services, feel free to contact my office for a free 30 minutes telephone consultation”)?
At the outset it is important to note that contacting a FB friend or LI connection who is a close personal friend, family member or someone you have had a prior professional relationship would generally be acceptable because the Rule 7.3 ban on solicitation does not apply to family or those with whom the lawyer has a close personal, or prior professional relationship.
In my view, friending someone, even if the person is a complete stranger on FB or sending a request to connect on LinkedIn is neither a solicitation for services nor any form of marketing under the rules of professional conduct, unless accompanied by language offering legal services.
However, instant messaging a stranger on FB could be problematic, if it is deemed “real-time electronic communication,” which as Philadelphia Bar Association ethics opinion found, was contemplated to be a “chat room.” The difference between an “instant message” and a “chat room,” is a distinction largely based on semantics.
Wikipedia defines a chat room as “any technology ranging from real-time online chat and virtual interaction with strangers over instant messaging and online forums to fully immersive graphical social environments.” In essence, at least today, instant messaging is a type of chat room marked by the ability to communicate in real-time – the invitation to respond immediately. That’s exactly what a chat room is, whether it’s an instant message, live chat or text. Over a decade ago, the drafters of the ABA model rule 7.3 contemplated a “chat room,” as a place which by its very name, suggests something more than simply written contact. A “chat room” 13 years ago certainly may have indicated an internet conversation in which the parties felt compelled to respond. However, now, as the Philadelphia Bar Association Guidance Committee noted, such places no longer exist.
This is supported by a recent ethics opinion in Ohio, which found that texting a stranger for potential representation is not “real-time electronic communication.” Like Pennsylvania, Ohio’s Rule 7.3 also prohibits solicitation by real-time electronic communication.
In April, 2013, the Supreme Court of Ohio Board of Commissioners on Grievances & Discipline, answered the following inquiry: May Ohio lawyers use text messages to solicit professional employment from prospective clients? The answer is yes. The Board stated:
“Chat rooms facilitate live text or voice conversations among multiple persons connected to the internet. The Board agrees that Prof.Cond.R. 7.3(a) prohibits lawyers from soliciting prospective clients via internet chat rooms as these are real-time electronic contacts. The Board’s view is that a standard text message is more akin to an email than a chat room communication. Accordingly, a typical text message is not a real-time‛ electronic contact. Lawyers may likewise solicit clients using test messages so long as the technology used to implement the text message does not generate a real-time or live conversation.” (Opinion 2013-2, Page 5, emphasis added)
It is simply unclear in Pennsylvania whether a FB or LI instant message conversation would be deemed a “real-time electronic communication” or like in Ohio, more like a text and therefore an email.
Ex 2: You are a personal injury lawyer. After a high profile accident case hits the media, you find an injured person’s personal profile. Can you send them an email?
You are probably safe here, assuming you’ve complied with other applicable rules, such as Rule 7.1 which prohibits false/misleading communications or Rule 1.18 which details duties to prospective clients. Rule 7.3 clearly allows written communications which may include targeted, direct advertisements. It’s certainly arguable that emails are written communications. Also see Pennsylvania Bar Association Opinion 2008-055 which found that sending emails to potential clients (strangers whose email addresses were found online) was acceptable under Rule 7.3.
Ex 3: You represent small businesses. You know of an acquaintance who is opening up a company. You use Google Plus instant message chat feature with video call capability to contact the person about representation.
The addition of video conference calling via live chat is relatively new. While the considerations of “real-time electronic communication” are still present with an instant message, the addition of the video is worrisome because it probably pushes what is ordinarily an instant message via typed communications into the “in person” contact area.
Using social media to market your brand is increasingly important for lawyers. Using social media ethically and wisely is not mutually exclusive. Emailing a connection or member of a network or circle and emailing a stranger is ethically permitted under Rule 7.3. Beyond that, we get into grey area.
While the Philadelphia Bar Association Professional Guidance Committee opinion clearly takes the position that online written communication in real-time are permitted, lawyers who use live chat features of social media do so at their own peril. If you choose to use a live chat, chat room, instant message feature to contact an individual about a potential case, you’d best be served by keeping a copy of the entire communication (for 2 years, as required by Rule 7.2(b)) and otherwise complying with other Rules of Professional Conduct (keep the communications truthful and use disclaimers regarding creation of an attorney-client privilege, confidentiality of information, etc.).