Given this explosion in online legal marketing through social networking, it is therefore clear why some attorneys might find such preclusive state-specific disclosures to be problematic. Furthermore, an attorney whom is licensed in multiple states might not know which state disclosure requirements apply to his or her online posting(s) given the global reach of a social networking post. Such potential conflicts further illustrate why a clearer response on the application of the ethics rules to social networking and/or adopting a new set of guidelines – like the aforementioned modified/shortened disclaimers – is needed by both the ABA and respective State Bar associations.
Another potential obstacle to liberating social media posts from the constraints of the current attorney advertising rules comes from MR 7.1’s prohibition on false or misleading information. Here, the conflict between social media as “advertising” and MR 7.1 stems not from the potential that the posting attorneys might provide “false or misleading information” themselves, but from two other possibilities: The perversion of a lawyer’s posted content by subsequent visitors to his or her social networking page, and the potential for a lawyer’s online network of social networking endorsements, recommendations or “followers” creating “unjustified expectations” in violation of MR 7.1.
The first of these concerns the possibility that subsequent commenters and/or visitors to that attorney’s social media page could pervert the content of the lawyer’s page into something that violates MR 7.1 via un-solicited comments/testimonials. That is, assume the content a lawyer originally publishes on his or her social networking page conforms with the requirements of 7.1, but a “commenter” decides to add potentially false or misleading information to that page via an unsolicited comment or client testimonial. According to Bar Associations in South Carolina and Florida, the attorney is obligated to ensure that all such replies/comments subsequently added to their social networking page conform with the rules of 7.1. The South Carolina Bar Association opinion states that lawyers are responsible for “all communications” regarding their law practice, and all such communications are governed by Rule 7.1 of the Rules of Professional Conduct. Comment 1 to Rule 7.1 clarifies this by saying “this Rule governs all communications about a lawyer’s services…. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.” The South Carolina Bar opinion states that a lawyer is not responsible for statements about the lawyer or the lawyer’s practice that are not “placed or disseminated” by the lawyer, but the decision also says that any information that subsequently appears on a social networking page owned or claimed by the attorney will be considered information “placed or disseminated” by the lawyer. If a lawyer must be responsible for all content subsequently posted to his or her social networking page, the daily task of policing these networks would grow so burdensome as to effectively prohibit lawyers without significant staff resources from participating in many social networking opportunities. While the subsequent negative effect on a lawyer’s business/marketing ability and the potential chill on online legal discourse may not be enough to overcome the public’s need for protective disclaimers altogether, these problems are significant enough that some middle ground – such as a modified “online” legal disclaimer – should be developed for use in social networking context(s).
Many business networking sites allow for unsolicited comments or testimonials by clients of a member to be posted on that member’s social networking page, and this new “policing” requirement from the Florida and South Carolina Bar Associations is intended to prevent overly-effusive and potentially misleading client testimonials from appearing on an attorney’s social networking page in violation of the “unjustified expectation” requirement in comment 3 to MR7.1. While this decision clearly seeks to ensure the accuracy of attorney information provided to the public, some suggest that this requirement for attorneys to police any of the subsequent postings on their social networking page could have a chilling effect on truthful information about the lawyer’s performance. Gregory R. Hanthorn, the cochair of the Professionalism subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee suggests that “the positions of the Florida and South Carolina bar associations may also have the unintended consequence of making it harder for honest and unfiltered comments regarding an attorney’s skills to become readily available to legal consumers.”