by Jason M. Caruso
Nearly all lawyers now use social media to some extent for marketing: the American Bar Association’s 2019 Legal Technology Survey Report found that 80% of respondents used social media themselves for professional purposes. Other surveys report similar results, with Attorney at Work’s 2018 Fourth Annual Social Media Marketing Survey finding that 85% of lawyers reported that social media forms a part of their marketing strategy, with 71% of lawyers saying that social media is very or somewhat responsible for bringing in new clients.
The advantages of social media marketing are plain. Many social media sites and applications are free to publish content and free to view. The potential return on investment is very high: all that’s sometimes needed is a quick video or post. The content can be (or at least, appear) very authentic: some of the most cutting-edge content are short-form videos that a lawyer can shoot on their smartphone and immediately publish to the internet.
We’ve started to see such content on our social media feeds, whether on Facebook, LinkedIn, or Twitter, with attorneys seemingly making these reports after just having left a courtroom, a deposition, or a mediation. They include celebration or indignation regarding a judge’s ruling, recounting a heated exchange with opposing counsel, or relating a client’s gratitude after settlement.
The ease with which this content can be created makes it equally easy to forget that rules still apply. The relaxed setting and abbreviated format of most social media platforms lend themselves to less consideration before posting. But, the California Rules of Professional Conduct (the Rules) and other applicable rules still apply to (and can still be broken by) a 280-character Twitter post. See Cal. State Bar Form. Opn. 2012-186 (applicable rules and standards not relaxed even though “compliance might be more difficult or awkward in a social media setting”). So, before you write that post or before you post that video, take a moment to consider what Rules and other regulations might be implicated, and whether that material complies with them.
Can You Competently Use the Platform?
Rule 1.1 provides, “A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” On March 6, 2020, the State Bar’s Taskforce on Access Through Innovation of Legal Services (ATILS) issued its final report and recommendations to the State Bar Board of Trustees. (ATILS was charged with “identifying possible regulatory changes to enhance the delivery of, and access to, legal services through the use of technology,” and to issue recommendations to the State Bar’s Board of Trustees. The full report can be found at http://www.calbar.ca.gov/Portals/0/documents/publicComment/ATILS-Final-Report.pdf.) ATILS recommended that Rule 1.1 be amended to include an additional comment that, “The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology” (emphasis added). As of this article’s writing, ATILS’s proposed amendment to Rule 1.1 is in the public comment period.
Are You Engaging in Advertising?
The State Bar Act governs attorney advertising disseminated via the internet. Bus. & Prof. Code, § 6157, subd. (d). Advertising is defined as “any communication . . . that solicits employment of legal services provided by a licensee, and is directed to the general public and is paid for by, or on the behalf of, an attorney.” Bus. & Prof. Code, § 6157, subd. (c).
Internet advertising—like all attorney advertising—can make no guarantee regarding the outcome if the lawyer is hired. Nor can the advertising intimate that the lawyer can generally obtain immediate cash or quick settlements. The advertising cannot contain an impersonation or a spokesperson, without a disclosure. Last, if the possibility of contingent fees is mentioned, there must be a disclosure that the client might be responsible for costs if an adverse result occurs. Bus. & Prof. Code, § 6157.2.
Internet advertising is also subject to specific proscriptions against false, misleading, or deceptive information. If the results in particular cases are presented out of context, dramatized, and make reference to money received by or for a client, the advertising is presumed to be misleading. Bus. & Prof. Code, § 6158.1. A disclosure may be required that the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts. Bus. & Prof. Code, § 6158.3.
To the extent a social media post contains a statement regarding an attorney’s availability for professional employment, then the rules and standards regarding legal advertising apply. A social media post or other content can accidentally be turned into an advertisement. See Cal. State Bar Form. Opn. 2012-186 (attorney’s social media post “Another great victory in court today! My client is delighted. Who wants to be next?” constitutes an attorney advertisement under prior Rule 1-400).
Unless you are prepared to follow the regulations for attorney advertising in your social media content, including required disclosures, it may be best to make sure your content does not constitute and cannot be construed as an advertisement, including steering clear of any statement regarding your availability for professional employment.
Are You Making an Otherwise Regulated or Prohibited Communication?
Keep in mind that social media content does not have to be an advertisement to be subject to regulation. Comment  to Rule 7.1 makes clear that Rule 7.1 governs “all communications of any type whatsoever about the lawyer or the lawyer’s services,” including but not limited to the lawyer’s availability for professional employment. This is a small but significant departure from the prior Rules: prior Rule 1-400 defined regulated communications as those “by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client . . . .” Accordingly, care must be taken when relying on authorities and analysis predating the implementation of the current Rules, as that analysis may be under-inclusive.
Rule 7.1(a) bars false or misleading communications “about the lawyer or the lawyer’s services.” But, even true statements can be misleading if they are presented in such a way that a reasonable person might draw an unfounded conclusion regarding the lawyer or their services. Comm.  to Rule 7.1. Likewise, even true statements regarding a lawyer’s achievements on behalf of clients can be misleading if they are presented in such a way as to cause the reader to form unjustified expectations not tied to the specific circumstances of their case. Social media in general emphasizes brevity and speed over contextualization and deliberation. Consider whether the message you’re sending can be adequately and ethically communicated via that platform. If it can’t, consider communicating it via another method.
Social media content, particularly that concerning pending legal proceedings, also may run afoul of trial publicity limitations. Rule 3.6 bars “[a] lawyer who is participating or has participated in the investigation or litigation of a matter” from making “extrajudicial statements that the lawyer knows or reasonably should know will (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 3.6 is subject to nuances that are beyond the scope of this article. Bottom line, when commenting via social media on pending proceedings in which you are involved, keep in mind that such content may be widely disseminated, and that even a casual, off-the-cuff remark can have significant ramifications.
Some platforms provide the ability to associate hashtags or social tags on certain content (usually designated by the “#” sign and the “@” sign, respectively). Hashtags are utilized to link content with certain topics, while social tags may provide a recipient with a direct or indirect notification that they’ve been mentioned in certain content. Take care when using these tools: associating a topic with a particular person may rise to the level of defamation, depending on the nature of the content. The use of social tags might result in an actual (or perceived) impermissible ex parte communication. See Rule 4.2 (barring direct and indirect communications with represented party, unless the party’s lawyer has consented).
Am I Revealing Something Confidential?
An attorney is duty-bound to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Bus. & Prof. Code, § 6068(e). There is no “social media exception” to this rule. Again, the casual nature of social media in general, and the assumed anonymity of it, can make it easy to forget the importance of safeguarding such information. The removal of certain details or names when discussing the matter may not be sufficient. L.A. County Bar Ass’n Prof. & Ethics Comm., Opn. 529-2017 (discussing potential for waiver of product protections and cautioning against disclosure of such information via social media, even when client names and details are removed).
A lawyer may not reveal a client’s confidential information absent the client’s informed, written consent. Rule 1.6(a). But, even if an attorney has an understanding with their client that certain information regarding the case or ongoing proceedings might be published via the lawyer’s social media, consider whether such a waiver is effective. See Cal. State Bar Form. Opn. 1989-115 (advance waiver of confidentiality not unethical per se, provided waiver is “informed”).
Last, if you are celebrating a settlement, consider whether you are permitted to do so publicly. If the settlement agreement contains a confidentiality provision, consider whether that provision binds and applies to you as counsel. See Monster Energy Co. v. Schechter, 7 Cal. 5th 781, 792 (2019) (confidential settlement agreement only signed by attorney “as to form and content” may still bind attorney to confidentiality).
In sum, social media’s biggest benefits may be the source of its biggest drawbacks. Social media provides an easy way to disseminate authentic content, but also provides easy opportunities to run afoul of rules that seem like they are for more formal methods of communication and advertising. By rigorously considering the rules as they apply to your content, these pitfalls can be avoided.
Jason Moberly Caruso is an associate with Newmeyer & Dillion LLP in Newport Beach, California, where he specializes in complex environmental and land use matters, as well as appellate matters in state and federal courts. Jason is a member of the OCBA’s Professionalism and Ethics Committee. He can be reached at email@example.com. The views expressed herein are his own.