The Florida Bar Standing Committee on Advertising recently released its Guidelines for Networking Sites, which are meant to give Florida lawyers some guidance as to how the Bar Rules apply to social media sites like Facebook, Linkedin, Google+, and Twitter. Communications from a Florida lawyer that promote the lawyer’s legal services are regulated by the Bar Rules. So a lawyer using social media for social purposes is probably not subject to the rules, where a lawyer using social media for commercial purposes — to attract clients — probably is subject to the rules.
I have been using Facebook, LinkedIn, and Twitter practically since their inception. Like most lawyers, I fervently wish not to run afoul of the Bar Rules. Unfortunately, I am confused by the Standing Committee’s guidelines and I think they need clarification. I cannot always tell when my online activity constitutes lawyer advertising and when it does not.
For example, the guidelines seem to indicate that a lawyer’s Facebook page is not subject to lawyer advertising rules because it is used “to maintain social contact with family and close friends.” But what of a lawyer who has, say, a thousand friends on Facebook, quite a few of whom qualify neither as family nor as close friends? Does that many Facebook friends turn a Facebook post into a legal advertisement? The Bar Rules treat communications with strangers differently to the way they treat communications with those with whom the lawyer has a pre-existing relationship. What if some of my Facebook friends are not friends at all, but are strangers in fact? Would this turn my Facebook posts into legal advertisements? Or are all my Facebook friends automatically regarded as pre-existing relationships?
What about content? I sometimes do post about the legal issues, but even then I consider my Facebook activity to be entirely social in nature. But does the Bar? I cannot tell. Does the content of a lawyer’s posts make a difference as to whether the post becomes subject to the rules? I feel pretty safe in suggesting that the lawyer advertising rules probably don’t apply to a Facebook discussion about, say, the Superbowl. But what about a discussion about an upcoming election? What about a recent Supreme Court decision? Once a lawyer starts posting about legal issues, does that turn social networking activity into an advertisement? I can’t say for certain.
The fact is, a lawyer’s day-to-day social conduct arising in his or her personal and professional life has always been a form of marketing. Clients choose a lawyer at least in part based on an impression of his or her overall conduct in the community. Social media posts, even posts about the Super bowl, clearly affect the formulation of that impression. Does that make them advertising?
The upshot is that it’s tough to tell what is covered by the rules. In light of the guidelines, I am not sure whether my Twitter home page needs a Rule 4-7.2 advertising disclaimer on it or not. The guidelines sort of suggest that to avoid being subject to the Rules a lawyer’s Twitter feed should only be open to his or her followers and not the general public.
I am mostly worried about LinkedIn, which is clearly more commercial and less social in nature than Facebook and Twitter; it’s very raison d’être is to cultivate business contacts. I think that viewed in a reasonably conservative light, a LinkedIn page is likely to be subject to Rule 4-7.2. I am therefore considering inserting a disclaimer somewhere on my LinkedIn profile. I am also considering removing the recommendations that folks have been kind enough to post on my LinkedIn page as I fear having them branded as testimonials, which are verboten. I am also concerned about the “Specialties” field on my LinkedIn profile as well, as the Bar considers that a reserved word.
Most importantly, I am instituting a moratorium on sending out friend requests on Facebook, connect requests on LinkedIn, and other invitations of all kinds. The guidelines make it clear that invitations sent by instant messaging to potential clients violate Rule 4-7.4(a). Trouble is, the sending lawyer doesn’t always have control over or knowledge of whether the recipient has elected to receive invitations by instant message or email or some other channel. These media are merging and becoming difficult to distinguish. By glancing at one’s iPhone, for example, one can’t always tell whether an incoming communication is a Facebook message, an SMS text message, an email, or a tweet. These days, I am not sure what difference it makes, really. But the Guidelines say a lawyer cannot solicit from a social media site via instant message, so the only safe approach is to just stop inviting people to your page. Pity.
So generally, I think the Guidelines will have a chilling effect on lawyers’ use of social media. Unfortunately this inevitably leads to lawyers being disenfranchised from society. I sincerely applaud the Bar’s efforts to ensure that bona fide lawyer advertising does not violate established rules. But lawyers need to stay current. We’re already competing with LegalZoom and DocStoc and, truth be told, India. We need all the help we can get to stay relevant.
Until the Bar draws brighter lines about which conduct is subject to the rules, the conservative approach for Florida lawyers is to back away from social media a bit and proceed with caution. The popular social media sites are a huge component — some would say the very lifeblood — of participation in modern civilization. To many potential clients, and especially to the up-and-coming generation, if you’re not online you just don’t exist. You’re not a factor. But until the underlying rules regarding lawyer advertising change, lawyers need to be careful.
My hat is off to the folks at the Bar who are working on these guidelines and the underlying rules. These are hard problems to solve. But consumers don’t really pay that much attention to advertising anymore, do they? Potential clients, in my experience, seek authenticity and honesty, and they’re not terribly bad at recognizing deceptive advertising when it is thrust upon them. As potential clients seek legitimate commercial information and guidance from which to form buying judgments, advertising of all kinds is giving way to a more refined course of conduct consisting of conversation, interaction, and unstructured communication. Unfortunately, these are the very things the Bar rules on lawyer advertising currently seem to be structured to inhibit.