Wednesday, June 20, 2012

California ethics opinion warns lawyers that boastful social media postings can be improper solicitation

This draft opinion from the California Bar Ethics Committee also reminds lawyers that they have a duty to preserve all communications for two years. If the social media sites they use don't archive communications, it means attorneys must print hardcopies or electronically save their posts. From the BNA Electronic Commerce and Law Report (subscription required):

Draft Opinion Addresses Ethics Duties On Social Media Postings by Attorneys

A California attorney who posts messages on a social media website in a manner that reasonably could be read as indicating her availability for employment would be subject to the restrictions of California Rule of Professional Conduct 1-400 on lawyer advertising, according to a draft opinion from the California bar's ethics committee (California State Bar Standing Comm. on Professional Responsibility, Draft Formal Op. Interim No. 10-0001).
Rule 1-400 prohibits solicitations that are misleading or coercive. It also mandates “Advertising” disclaimers—although the committee acknowledged that the specifics regarding font size may need to be revisited in the age of social media postings.
. . . .
The committee also highlighted that an attorney has a duty to preserve all communications for two years. If the social media website does not automatically archive postings, the lawyer must print out or save a copy of the screen post, the opinion states.
The opinion provides examples of three problematic postings that may violate professional responsibility rules:
   • “Another great victory in court today! My client is delighted. Who wants to be
   • “Won a million dollar verdict. Tell your friends and check out my website.”
   • “Won another personal injury case. Call me for a free consultation.”
In each example, the panel said, Rule 1-400 would apply because the attorney's statement may be read as showing availability for professional employment.

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