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Perhaps the most obvious ethical conflict for a lawyer involved with social media is how that lawyer’s online presence might conflict with the Model Rules on Attorney Advertising.  Comment 3 to Rule 7.2 recognizes that “electronic media, such as the Internet, can be an important source of information about legal services.”  Unfortunately, only a few state and regional bar associations have addressed the topic of attorney advertising for other internet-based matters and none have specifically addressed attorney advertising as it pertains to social media posts. Therefore, many attorneys have no idea if their blog or social media posts must conform with state-specific attorney advertising rules.  

This ambiguity has recently resulted in sanctions for attorneys like Horace Hunter of Richmond, Virginia.  Hunter, who sometimes writes about his past cases online, and was charged with misconduct by the Virginia State Bar.  The Bar contends that since one purpose of the blog is to market the firm and attract business, any discussion of the lawyer’s cases is advertising and must include language that will not mislead the reader as to the nature of the lawyer’s success.  Hunter is challenging the Bar’s position, insisting that these writings are as much “news and commentary” as they are advertising, and therefore should not require advertising disclaimers.  

Public support for Hunter’s position is growing amongst prominent lawyers across the country.  Carol L. O’Riordan, the Founder and Managing Partner of the O’Riordan Bethel Law Firm in Washington D.C. “believe[s] that the Virginia approach is particularly troubling as it can affect the ability of knowledgeable professionals to share their thoughts and lessons learned, and even to opine on the state of the law — something that has always been viewed as protected under the 1st Amendment and as vital to the advance of the legal profession.” Id.  Rodney Smolla, a former dean at Washington and Lee University School of Law who filed a brief before the state bar on Hunter’s behalf, said Hunter’s blog resembles journalism more than advertising: “I don’t think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients.  Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.  [This disciplinary action] could exert a chilling effect on all lawyers that blog on litigation results, particularly if those results are involving matters on which they’ve worked as a lawyer.”  

The sentiment shared by these attorneys is part of a larger “movement in legal advertising that encourages the use of social media without placing undue burdens on lawyers.”  This movement has gained traction since the American Bar Association’s Commission on Ethics said in June of 2011 that no new restrictions were necessary to regulate lawyers’ use of technology and client development, and that prohibiting Internet and other electronic advertising would impede the flow of information about legal services to many sectors of the public.

Another troubling aspect about the misconduct charge against Hunter is the fact that the Virginia Bar Association has never before held an attorney in violation of the rules for similar online behavior.  Indeed, the bar’s archives show no record of disciplinary action against Virginia attorneys regarding blogging or social media posts as advertising.  It is unclear as to why the Virginia Bar is suddenly choosing to take action against this particular attorney for something that many attorneys have been doing online for almost a decade.  This selective application of attorney advertising rules to social media activities leaves many attorneys not knowing what conduct is truly prohibited or which activities, if any, must include disclaimers when performed online.

It therefore remains unclear whether social media posts by lawyers are forms of Internet “advertising” and, as such, governed by existing state bar regulations.  When the position of the Virginia Bar is taken, it clearly becomes difficult to apply cumbersome attorney advertising rules (created explicitly for the use in other media) to the fast-moving and fluid universe of social media.   In fact, an attorney may not be able comply at all with the outdated additional state bar regulations on advertising given certain limitations inherent within the specific social media network being used.