We all think we are pretty savvy when it comes to spotting advertising on the Internet. As the days of flashing banners fade off into the distance, consumer engagement online is more of a business concern than ever. Today, we see teeny tiny words like “Ad,” “Sponsored Post,” and “Presented By.” We see hashtags like #contest and #sweepstakes. Some of us have maybe even had some client pushback while advising on these necessary disclosures. While social media has brought about a new wave of consumer engagement, attorneys should be concerned that they too are following the necessary rules and regulations for client engagement on social media.
Here are some rules and regulations of particular concern:
Professional Responsibility Regulations
I don’t believe the MPRE covered situations like whether or not you may friend your client on Facebook or if you may direct message a judge. Like many areas of the law, lawyers have to make smart analogies to regulations written for non-digital interactions. While posting on social media is not exactly like Danny DeVito running around in a hospital in The Rainmaker, we can keep ourselves aware of particular areas of concern.
If someone online is recommending your services via social media, this must follow advertising guidelines. For example, practitioners should avoid paying or giving something of value to people who recommend them via social media. Additionally, make sure that all your profiles accurately represent any expertise or limitations you may have in your practice area.
Many attorneys use social media to discuss legal issues, which shows their knowledge and expertise in an area. This alone is not likely solicitation. On the other hand, directly asking people who have been injured if they need representation is clearly subject to solicitation rules. This means clearly denoting solicitation material as such and not using trickery to solicit work.
Transactions With Third Parties
Keep a close eye on your social media connections and who can see your posts. If someone related to a case is following you, but you know they are represented, you don’t want to be caught disclosing information to them or soliciting information from them. Likewise, disclose if you have a personal interest in a case.
As with blogs, it’s a good idea to put a disclosure somewhere on your profile showing that what you say on social media is not legal advice. Similarly, if you are using social media personally, you may want to disclose that the content contains your own personal views, rather than the views of your employer etc.
In June, the FTC updated its FAQ page relating to its Endorsement Guides, which had not been updated since 2010. The agency used the opportunity to give more specific advice regarding disclosures on social media. While professional responsibility regulations discussed above cover most instances of false and deceptive advertising that the FTC is concerned about, there are some things that the FTC has specifically stated.
If a disclosure is necessary, then character limits do not negate the need to make the disclosure. #Ad only takes three characters.
Watch out for non-existent likes or connections. The FTC states, “If ‘likes’ are from non-existent people or people who have no experience using the product or service, they are clearly deceptive, and both the purchaser and the seller of the fake ‘likes’ could face enforcement action.” It’s best to avoid any services or #followback hashtags if they can be construed as endorsing your business.
It’s important not to forget that agreements, such as non-competes and terms of service, also dictate what we can or cannot do on social media. This is a problem generally for people using LinkedIn who may be construed as soliciting clients by communicating their new position via the social network. While attorneys generally are not subject to non-compete clauses that restrict solicitation of previous clients, this may be an issue for someone moving from in-house back into a firm.
It’s our job as attorneys to check regulations and make sure that we keep aware of new rules, but if your practice outsources its social media to a PR or marketing firm, they may not be aware of these regulations. It may be time to have a chat with your marketing team and make sure that they too are following solicitation and disclosure guidelines. It may also be a great time for attorneys to take over some of the responsibility.
Actually being on social media and making sure that you follow advertising and solicitation rules is one of the best ways to know that you are properly advising clients who also need to follow guidelines in their own social media usage.
About the Author
Rachel Wenzel is a California licensed attorney specializing in intellectual property. She has recently transplanted to New Orleans and can be reached at firstname.lastname@example.org.
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