As of May 2011, more than 65 percent of adults in the United States participated on social media sites, according to the Pew 2011 Internet & American Life Survey. That’s a lot of people interacting and sharing online, and lawyers are beginning to take notice.
Understandably, as more people use social media, more lawyers are beginning to acknowledge the potential benefits of online interaction. However, as is the case with any type of interaction with potential clients, whether online or off, there are risks of unintentionally violating ethics rules regarding solicitation, advertising, inadvertently creating an attorney client relationship and more.
Fortunately, for New York lawyers seeking guidance on these issues, the New York State Bar Association Committee on Professional Ethics addressed some of these concerns in Opinion 899 (12/21/11).
This opinion answered two questions: 1) Whether lawyers may answer legal questions in chat rooms or on other online social media sites; and 2) If so, whether lawyers may also offer their legal services in the course of answering questions?
When addressing the first question, the committee compared answering legal questions on the Internet to writing for publications on legal topics. The committee cited Rule 1.7(r) and advised that “a lawyer may write for publication on legal topics without affecting the right to accept employment, as long as the lawyer does not undertake to give individual advice.”
However, the committee also referenced the Comments to Rule 1.7(r) and cautioned that lawyers should refrain from misleading members of the public into thinking that “a general solution (is) applicable to all apparently similar individual problems, because slight changes in fact situations may require a material variance in the applicable advice.”
Finally, the committee turned to the issue of whether answering questions online constitutes advertising and concluded that in most cases it does not, as long as the communication’s “primary purpose is to educate and inform rather than to attract clients.”
Next, the committee considered the second question: whether lawyers answering questions online may simultaneously offer their legal services. At the outset, the committee noted that although Rule 7(a) prohibits lawyers from soliciting clients in chat rooms or on other social media sites, Rule 7.3(b) specifically excludes responses provided at the “specific request” of a prospective client.
However, the committee then explained that “a legal question posted by a member of the public on real-time interactive Internet or social media sites cannot be construed as a ‘specific request’ to retain the lawyer … (but) if a lawyer’s primary purpose in answering a question is not to encourage his own retention but rather is to educate the public by providing general answers to legal question, then Rule 7.3(a)(l) does not prohibit the lawyer’s responses.”
The committee then addressed the proper course of action to take when, during the course of an online interaction, a prospective client makes a specific request to retain legal services. The committee concluded that it is ethically permissible for a lawyer to respond to the request, but if the forum in which the request was made is public, the response must be made privately and “outside the site … so that persons who did not request the proposal cannot see it.”
In other words, when engaging in public online forums, lawyers should focus on providing general information that serves to educate the public and, if the interaction leads to a request for representation, the lawyer should follow up by requesting a means to engage in a private conversation, whether by phone, email or in person.
As a side note, the committee specifically states in its opinion that “the lawyer may respond (to a request to retain the lawyer) with a private written proposal outside the site” (emphasis added). Thus, presumably, responding to a request for representation via a private message at the social media site would be unacceptable. This makes no sense to me, since a private message at an online forum is no less private than an email or phone call, and is not visible to those who did not request information regarding legal services.
It unclear to me whether the committee reached this conclusion on purpose, whether it was an oversight, or whether it was due to a lack of understanding of the private messaging function available at many social media sites, such as Twitter, LinkedIn and Facebook. Nevertheless, according to my reading of this opinion, responding to a request for representation via a private message at a social media site may not be ethically permissible and should be avoided absent additional clarification from the committee in a subsequent opinion.
Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at email@example.com.