How the New Rules of Conduct Affect Your Social Media Use

lawyers using social media to advertiseThe following is a guest blog post by Renee Galente Stackhouse. Renee is the founder and trial lawyer at Stackhouse, APC, where she focuses on plaintiff’s personal injury and military defense in San Diego. She is the immediate past President of California Women Lawyers, President of the CWL Foundation, Chair of the CLA SSF Section, and sits on the Board of the San Diego County Bar Association.

Potential clients and referrals are out there on social media platforms and you can’t afford to ignore them. The new California Rules of Professional Conduct, effective November 1, 2018, take social media realities into account and require changes to the way lawyers use social media.

When communicating about your services, you’re only responsible for what you say. Under new Rule 7.1, lawyers still can’t make false or misleading statements about themselves or their services. But there’s a change from the old rule on communication: Lawyers are not responsible for what others say about them.

You can say “specializes in” even if you’re not a certified specialist. Under new Rule 7.4, a lawyer may now say that his or her practice “specializes in” a particular area even if the lawyer is not a certified specialist by the Board of Law Specialization. The key is to steer clear of stating that you’re a “certified specialist” if you’re not. To be on the safe side, it may be best to say that you “focus” your practice in a particular area of law instead.

The lawyer advertising rules apply to social media advertising. New Rules 7.2 and 7.3 state the rules of lawyer advertising. When directing the advertising to a particular person, you need to state that it’s advertising. One easy way to do that is to add the hashtag “#ad” to your social media post or other advertising. If the advertising is going to the general public, e.g., a social media banner ad, you don’t need to add the hashtag or other indication that it’s advertising.

When is a statement advertising? If it includes a call to action. For example:

“Case finally over. Unanimous verdict! Celebrating tonight.”

NOT Advertising. “It is not a message or offer “concerning the availability for professional employment.” NOT a call to action.

“Another great victory in court today! My client is delighted. Who wants to be next?”

This is advertising. First two sentences would be ok. Third sentence “suggests availability for professional employment.”

“Won another personal injury case. Call me for a free consultation.”

This is advertising. First sentence is fine. Second sentence concerns professional employment. It doesn’t matter that it’s a “free” consultation, communications aren’t limited to messages seeking money for services.

“Just published an article on wage and hour breaks. Let me know if you would like a copy.”

NOT advertising. The attorney is merely relaying information regarding a published article and is offering to provide copies.

Old standards for advertising are gone. Under the new Rules, the standards in former Rule 1-400 have been removed as “not necessary to regulate inherently false and deceptive advertising.” And the record-keeping requirement was eliminated as “increasingly burdensome” and “seldom used for disciplinary purposes.”

You can look at public social media information of parties and witnesses, but don’t get sneaky with “friend” requests. New Rule 4.1 prohibits lying by omission to communicate with someone, which would include using a false name to “friend” someone involved in a case.

Although lawyers are generally not caught for social media violations until the State Bar is investigating something else, it’s always best to be careful and follow the rules.

View Renee’s program The Ethics of Social Media, available On Demand. And get more practical advice and information from Renee in her program Introducing Social Media Evidence: Foundation and Authentication Issues on Dec. 10th at noon.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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