The emergence and popularity of social media have changed the way we interact with each other online. We’re no longer limited to traditional methods of networking (i.e., lunches with potential clients, networking events, etc). We can engage our network from the comfort of our offices and even with our smart phones. Whether it’s use of LinkedIn, Facebook and now Google Plus, as lawyers, our social media profiles are an important part of any internet marketing strategy.
Many lawyers ask whether, if they contact a potential client via social media, they are engaging in a prohibited form of solicitation. In most cases, the answer is probably no.
Pennsylvania Rule of Professional Conduct 7.3 Direct Contact with Prospective Clients, provides in its entirety (emphasis added):
(a) A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. The term ‘‘solicit’’ includes contact in-person by telephone or by real-time electronic communication, but, subject to the requirements of Rule 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.
(b) A lawyer may contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment unless:
(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;
(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or
(3) the communication involves coercion, duress, or harassment.
The rule makes clear that a lawyer may not contact a stranger to discuss representation if the contact is in-person, either by telephone or “real-time electronic communication.” In the context of social media, the concern is whether use of social media to contact potential clients constitutes “real-time electronic communication.” The problem is the phrase is not defined anywhere in the rule or its comments.