Hello and welcome to this Ethics Alert blog which will discuss the 2012 California Formal Ethics Opinion which addresses a lawyer’s obligations when posting on Facebook and other social media websites. The opinion is Cal. Formal Op. 2012-186 (12/21/12). The ethics opinion is here: https://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-186%20%2812-21-12%29.pdf
The California State Bar’s Standing Committee on Professional Responsibility and Conduct issued a formal ethics opinion with guidelines and ethical restrictions on California attorneys when using social media. The opinion states that Facebook and other social media advertising is subject to the same Bar Rules as traditional forms of advertising and under those rules, false and misleading advertising is prohibited. The opinion also states that the determination of whether the comment is a communication subject to the California Bar Rules is whether it is a message or offer “concerning the availability for professional employment”.
The opinion reviewed and analyzed the following hypothetical facts and comments:
“Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her personal life and professional practice on her personal profile page. Only individuals whom the Attorney has approved to view her personal page may view this content (in Facebook parlance, whom she has “friended”). Attorney has about 500 approved contacts or “friends,” who are a mix of personal and professional acquaintances, including some persons whom Attorney does not even know.
In the past month, Attorney has posted the following remarks on her profile page:
1. ‘Case finally over. Unanimous verdict! Celebrating tonight.’
2. ‘Another great victory in court today! My client is delighted. Who wants to be next?’
3. ‘Won a million dollar verdict. Tell your friends and check out my website.’
4. ‘Won another personal injury case. Call me for a free consultation.’
5. ‘Just published an article on wage and hour breaks. Let me know if you would like a copy.’
The opinion concludes that comments 1 and 5 would not be a communication “concerning the availability for professional employment” subject to the California Bar Rules; however, comments 2, 3, and 4 would be communications subject to the Bar Rules. The opinion also states, in a footnote, that the conclusions in the opinion are not limited to Facebook and would include Twitter, social media and other websites.
Bottom line: As I have said many times in the past, state Bar Ethics Opinions are not binding and are intended only to provide guidance to lawyers; however, this opinion gives a good overview of the requirements of the California Bar Rules when a lawyer posts on social media and other websites. The California Bar Rules state that the advertising rules apply to communications “concerning the availability of employment”. The analysis and conclusions in this opinion would arguably apply to lawyers in other states which have the same or similar language, for example, Rule 4-7.11(a) of The Florida’s Bar advertising rules state that: (t)he terms “advertising” and “advertisement” as used in (the Florida Bar rules) refer to all forms of communication seeking legal employment, both written and spoken.”
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
lawmrh
With respect to the advertising and solicitation rules, i.e., 7.1, 7.2, 7.3, 7.4 and 7.5, it sounds like the way to steer clear of problems on social media is not to post any contact information. In that way, you aren’t ever directly or indirectly promoting, trolling or advertising your “availability” or otherwise “seeking legal employment.”
In my opinion, lawyers who put themselves out there with contact information via virtually every available online social media tool (blogs, twitter, Facebook ad nauseum) do so to ‘market’ themselves to potential clients or to referral sources that can potentially generate new clients.
Your lawyer ethics blog is a case in point as your practice is focused on assisting and defending lawyers in licensing and disciplinary matters in Florida. And doubtless, by providing lawyer ethics alerts to the consuming lawyer community, you are burnishing your subject matter expertise and information currency. I say bravo so don’t get me wrong as I don’t think there is anything wrong with leveraging social media this way. I just believe the legal ethics rules have a ways to catch up with today’s realities and given the zealous prosecutorial mindset of most offices of lawyer regulation, there are dangers out there for unwary lawyers. You are wise to invoke Sgt. Phil Esterhaus (the late Michael Conrad) and his famous admonition on the old T.V. show, “Hill Street Blues” — more precisely, “Let’s be careful out there!”
https://www.youtube.com/watch?v=T2QApwtE8zQ
– Mo
jcorsmeier
Thanks for your comments, Mo. I agree that it is a “brave New World” out there and I not sure that lawyers (particularly young lawyers) can get by without having an online presence. I try my best to comply with the Bar Rules with my blogs! You are right that I am paraphrasing Sgt. Esterhaus from Hill Street Blues
(Michael Conrad- may he rest in peace) with my “Be careful out there”!
lawmrh
Ditto on ethical compliance diligence while blogging. I think the most important practice rule for me, especially given my usually snarky, irreverent tone is to never go with the first few drafts. Walk away and come back to it later — sort of like walking away and counting to ten. I edit carefully. And sometimes, you never post!
– Mo
jcorsmeier
Yes, somewhat like responding to letters and e-mails that are upsetting!
Studying Law
Great post! Been reading a lot about different aspects of working in the law field recently. Thanks for the info!