As we celebrate the first anniversary of our blog, it seems like an opportune time to discuss the ethics and risks of attorney advertising. I read two seemingly contradictory articles recently about the use of Twitter and other social media by lawyers. In the first, the author suggested that lawyers aren’t taking sufficient advantage of Twitter as a marketing tool. The second article warned that the use of Twitter and other social media might run afoul of the ethics rules on lawyer advertising.
Which is right? Well, they both are. Attorney advertising is regulated by the Rules of Professional Conduct. Those Rules can vary among jurisdictions and it’s not always easy to recognize whether a particular communication constitutes advertising. And if something is considered advertising, labeling requirements and certain restrictions may apply. So while Twitter, LinkedIn, Facebook, and, yes, legal blogs, certainly are valuable business development tools, lawyers who use them must ensure that they are in compliance with the Rules.
So what is attorney advertising? Again, the precise definition can vary, but suffice it to say, it encompasses far more than just the TV and radio commercials. As one state bar opinion put it, advertising is any type of communication (electronic or otherwise) that is made for the “primary purpose” of securing client retention. That’s not always easy to determine — isn’t the ultimate goal always to increase our business?
If your tweet, post, or blog is considered advertising, then you need to make sure it complies with the applicable rules. Some jurisdictions require a label such as “Attorney Advertising.” Some may also require it to be filed with a state agency. Depending on the content, others may require a disclaimer. Therein lies the rub: if you have to state “Prior results do not guaranty a similar outcome,” there’s not much left to tweet about.
Lest you think that the advertising rules rank low on the totem pole of risk, check out this decision cutting a New York lawyer’s fee in half, in part because his website — an “advertisement” — promised, but did not deliver, “great results.”
Of course, before using social media, make sure you understand how it works. For those unfamiliar with Twitter, the attached tutorial imagines a Twitter exchange as a live conversation. You can understand why it is such a powerful marketing tool.