10 Tips on Social Media and Attorney Ethics

2. The Bar Has Less Power Than You May Think

Regardless of whatever broad language your state Bar rules use, they are hemmed in by the First Amendment. And under the First Amendment, those advertising rules can only apply to what's known as “commercial speech.” What's “commercial speech?” It's speech that has the primary purpose of proposing a commercial transaction. In other words, advertising. Are you using social media to advertise? Not if you're following tip #1. See, Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Sorrell v. IMS Health, 131 S. Ct. 2653 (2011).

3. Even for Advertising, the Bar's Ability to Regulate Is Limited

Even if your communication is “commercial speech,” the Bar doesn't have free rein to regulate. Any attempt to regulate otherwise-truthful advertising must be justified by the state, which carries the burden to show that the regulation is in service of a substantial state interest, directly advances that government interest, and is no more extensive than necessary to serve that interest. Bottom line: The regulation of advertising must be based on solid evidence that such regulation is both necessary and narrowly tailored. See, Central Hudson v. New York, 447 U.S. 557 (1980) ().

4. There's No Out for Lying

One core principle that underlies the commercial speech doctrine is that advertisers only enjoy constitutional protections for non-deceptive speech. Once you cross the line into making marketing statements that are wrong or grossly misleading, you will lose even this protection. While lying outside the advertising context may be constitutionally protected, there is no such right whatsoever when it comes to marketing. Particularly when it comes to professional forms of social media that may be deemed advertising (think profiles on Avvo and LinkedIn), it's critical to avoid overstatement or embellishment of one's background and qualifications. See, United States v. Alvarez, 132 S. Ct. 2537 (2012); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

5. Bar Restrictions on Testimonials are Usually Unconstitutional

If you're worried about the proliferation of online client reviews and endorsements, you shouldn't be. Although some states still have restrictions on the books covering testimonial advertising, these rules applied broadly offend the Supreme Court's test for appropriate regulation of commercial speech. The Federal Trade Commission has long called on state Bars to cease the regulation of testimonial advertising, reasoning that such regulation inhibits competition and frustrates informed consumer choice. And those restrictions on testimonial advertising that have challenged in federal court have uniformly lost. See, FTC Letter Regarding Proposed New Jersey Advertising Guidelines (2006); Alexander v. Cahill, 598 F.3d 79 (2nd Cir. 2010); Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011).

6. Attorneys Cannot Be Liable for Third-Party Reviews

Besides the fact that most restrictions on testimonial advertising are unconstitutionally broad, there's another critical fact that applies to client reviews and peer endorsements posted online: the attorney who is the subject of those reviews cannot be held responsible for them. Under 47 U.S.C. '230, no user of an interactive service can be treated as the publisher or speaker of information provided by another user. This statute broadly preempts any state law that would otherwise hold one person or entity responsible for the words of another. Of course, this immunity does not apply if the attorney is paying others to post such reviews, or is posting edited reviews on the attorney's own website. See, 47 U.S.C. '230; Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

7. Solicitation and Advertising Rules Still Apply

Most states have restrictions on client solicitation and advertising. If you are using social media to advertise or solicit (which you shouldn't be doing), these rules still apply. Just because you used Twitter or Facebook to invite people to contact your firm doesn't mean that you're off the hook from complying with the advertising rules. The California Bar recently released an ethics opinion that provides a good look, including specific examples, of the types of social media communications that would be considered advertising. See, State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2012-186 (2012).

8. Touting Case Outcomes in Social Media Is a Bad Idea

Remember the discussion above about using social media to engage authentically, connect with others and share information that enlightens or amuses them? Touting your case victories does none of that; it is simply bombastic marketing schlock. What's more, the inherent limitations of social media ' from the breezy informality of Facebook comments to the rigid, 140-character limit of Twitter updates ' does not lend itself well to the inclusion of the context and/or mandatory disclaimers required under the rules of most states.

9. Your Legal Blog Isn't Subject to the Ad Rules ' Unless You are Doing It Wrong

It's useful to think of legal blogging as akin to writing articles for legal publications: while there may be an underlying business development motive, it's not something that would be considered commercial speech. In determining whether content that has mixed editorial and commercial purposes, courts will look at: 1) the advertising format of the message; 2) whether the message references a specific product; and 3) the underlying economic motive of the speaker. All three elements must be met, and obviously, most blogs wouldn't come close to meeting this test. That is, unless you are like Richmond, VA, attorney Horace Hunter and virtually all you blog about is yourself, your cases, what a wonderful lawyer you are, and essentially turn your blog into another marketing message on your website. In that case, your blog may cross the line into advertising and the rules will apply. See, Dex Media v. City of Seattle, 696 F.3d 952 (9th Cir. 2012); Hunter v. Virginia State Bar, No. 121472, (Supreme Court of Virginia, Feb. 28, 2013).

10. Professionalism'Comes First

It used to be that you'd have to wait until you got back to the office to kvetch about a bad day in court, an insolent client, a blowout with opposing counsel. Today's smartphones and social networks have reduced all barriers, allowing a frustrated attorney to fire off an angry missive for all the world to see before even clattering down the marble courthouse steps. Which is not a good thing. Besides the obvious cost to one's professional standing, reputation for judgment, etc., a poorly thought-out comment can actually lead to discipline if it reveals client confidences or materially interferes with the adjudicatory proceedings. So always make sure that the posts you write are something you would be happy to have the world read. See, Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); In the Matter of Margrett A. Skinner, No. S13Y0105, (Supreme Court of Georgia, March 18, 2013).

Josh King is vice president and general counsel of Avvo.com, an online legal Q&A platform, directory and marketplace.

Why do so many attorneys worry about their state bar advertising rules when considering using social media? Is it concern over the vague and often sweeping nature of these rules? The uncertain and shifting forms of communication they can have with close friends and strangers alike? To help address these concerns ' and to differentiate harmless communication from areas where problems may arise ' I present “10 Reasons Attorneys Can (Mostly) Relax When Using Social Media.”

1. Proper Use of Social Media Solves 95% of All Concerns

It's called “social” media for a reason. It's all about engaging with other people; sharing, helping and entertaining ' the things we do when we interact with other human beings, just brought online. You wouldn't go into a cocktail party or meeting and start telling everyone how great you are, would you? Extend your hand and ask to be hired? Of course not. Same goes with social media. It's not designed to be used as a billboard. As long as you are using social media as a means of authentically connecting with others, in ways they expect given the conventions of social media, the attorney advertising rules don't apply.

2. The Bar Has Less Power Than You May Think

Regardless of whatever broad language your state Bar rules use, they are hemmed in by the First Amendment. And under the First Amendment, those advertising rules can only apply to what's known as “commercial speech.” What's “commercial speech?” It's speech that has the primary purpose of proposing a commercial transaction. In other words, advertising. Are you using social media to advertise? Not if you're following tip #1. See, Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Sorrell v. IMS Health, 131 S. Ct. 2653 (2011).

3. Even for Advertising, the Bar's Ability to Regulate Is Limited

Even if your communication is “commercial speech,” the Bar doesn't have free rein to regulate. Any attempt to regulate otherwise-truthful advertising must be justified by the state, which carries the burden to show that the regulation is in service of a substantial state interest, directly advances that government interest, and is no more extensive than necessary to serve that interest. Bottom line: The regulation of advertising must be based on solid evidence that such regulation is both necessary and narrowly tailored. See, Central Hudson v. New York, 447 U.S. 557 (1980) ().

4. There's No Out for Lying

One core principle that underlies the commercial speech doctrine is that advertisers only enjoy constitutional protections for non-deceptive speech. Once you cross the line into making marketing statements that are wrong or grossly misleading, you will lose even this protection. While lying outside the advertising context may be constitutionally protected, there is no such right whatsoever when it comes to marketing. Particularly when it comes to professional forms of social media that may be deemed advertising (think profiles on Avvo and LinkedIn), it's critical to avoid overstatement or embellishment of one's background and qualifications. See, United States v. Alvarez, 132 S. Ct. 2537 (2012); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

5. Bar Restrictions on Testimonials are Usually Unconstitutional

If you're worried about the proliferation of online client reviews and endorsements, you shouldn't be. Although some states still have restrictions on the books covering testimonial advertising, these rules applied broadly offend the Supreme Court's test for appropriate regulation of commercial speech. The Federal Trade Commission has long called on state Bars to cease the regulation of testimonial advertising, reasoning that such regulation inhibits competition and frustrates informed consumer choice. And those restrictions on testimonial advertising that have challenged in federal court have uniformly lost. See, FTC Letter Regarding Proposed New Jersey Advertising Guidelines (2006); Alexander v. Cahill, 598 F.3d 79 (2nd Cir. 2010); Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011).

6. Attorneys Cannot Be Liable for Third-Party Reviews

Besides the fact that most restrictions on testimonial advertising are unconstitutionally broad, there's another critical fact that applies to client reviews and peer endorsements posted online: the attorney who is the subject of those reviews cannot be held responsible for them. Under 47 U.S.C. '230, no user of an interactive service can be treated as the publisher or speaker of information provided by another user. This statute broadly preempts any state law that would otherwise hold one person or entity responsible for the words of another. Of course, this immunity does not apply if the attorney is paying others to post such reviews, or is posting edited reviews on the attorney's own website. See , 47 U.S.C. '230 ; Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

7. Solicitation and Advertising Rules Still Apply

Most states have restrictions on client solicitation and advertising. If you are using social media to advertise or solicit (which you shouldn't be doing), these rules still apply. Just because you used Twitter or Facebook to invite people to contact your firm doesn't mean that you're off the hook from complying with the advertising rules. The California Bar recently released an ethics opinion that provides a good look, including specific examples, of the types of social media communications that would be considered advertising. See, State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2012-186 (2012).

8. Touting Case Outcomes in Social Media Is a Bad Idea

Remember the discussion above about using social media to engage authentically, connect with others and share information that enlightens or amuses them? Touting your case victories does none of that; it is simply bombastic marketing schlock. What's more, the inherent limitations of social media ' from the breezy informality of Facebook comments to the rigid, 140-character limit of Twitter updates ' does not lend itself well to the inclusion of the context and/or mandatory disclaimers required under the rules of most states.

9. Your Legal Blog Isn't Subject to the Ad Rules ' Unless You are Doing It Wrong

It's useful to think of legal blogging as akin to writing articles for legal publications: while there may be an underlying business development motive, it's not something that would be considered commercial speech. In determining whether content that has mixed editorial and commercial purposes, courts will look at: 1) the advertising format of the message; 2) whether the message references a specific product; and 3) the underlying economic motive of the speaker. All three elements must be met, and obviously, most blogs wouldn't come close to meeting this test. That is, unless you are like Richmond, VA, attorney Horace Hunter and virtually all you blog about is yourself, your cases, what a wonderful lawyer you are, and essentially turn your blog into another marketing message on your website. In that case, your blog may cross the line into advertising and the rules will apply. See, Dex Media v. City of Seattle, 696 F.3d 952 (9th Cir. 2012); Hunter v. Virginia State Bar, No. 121472, (Supreme Court of Virginia, Feb. 28, 2013).

10. Professionalism'Comes First

It used to be that you'd have to wait until you got back to the office to kvetch about a bad day in court, an insolent client, a blowout with opposing counsel. Today's smartphones and social networks have reduced all barriers, allowing a frustrated attorney to fire off an angry missive for all the world to see before even clattering down the marble courthouse steps. Which is not a good thing. Besides the obvious cost to one's professional standing, reputation for judgment, etc., a poorly thought-out comment can actually lead to discipline if it reveals client confidences or materially interferes with the adjudicatory proceedings. So always make sure that the posts you write are something you would be happy to have the world read. See, Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); In the Matter of Margrett A. Skinner, No. S13Y0105, (Supreme Court of Georgia, March 18, 2013).

Josh King is vice president and general counsel of Avvo.com, an online legal Q&A platform, directory and marketplace.