5 Important Ethics Opinions on Social Media Endorsements

There is no better marketing than a former client who wants to tell the world how wonderful you are, and no better platform than social media for doing that.

But be careful. Social media endorsements are an ethical minefield. Here are some questions posed by ABA ETHICSearch:

• What if a lawyer who concentrates his practice in real estate transactions and who never engages in litigation receives an endorsement from a former client lauding his ability as a litigator? 
• Or where a lawyer who has a Social Security disability practice gets an endorsement from another lawyer touting his abilities as an estate planner?
• Does a lawyer have an obligation to monitor his social media page to ensure that the endorsements he receives are accurate?

Here in North Carolina, as in other states, the State Bar has struggled to come up with ethical guidelines for online endorsements, testimonials and the like. It’s not easy. Technology changes overnight, but it can take months for the State Bar to receive an ethics inquiry, research it, debate it and publish an opinion on it.

Rule of Professional Conduct 7.1

RPC 7.1, Communications Concerning a Lawyer’s Services, says:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or (3) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

This is the core ethical principle of lawyer advertising: lawyers shall not make false or misleading communications about themselves or their services. 

“In fact, pursuant to a proposal put forth by the Association of Professional Responsibility Lawyers (APRL), all of the ABA Model Rules on lawyer advertising would be withdrawn and replaced by what is in effect the essence of Rule 7.1 so that all lawyer advertising would be regulated by a false and misleading standard,” according to ETHICSSearch. 

5 Important Ethics Opinions in NC

1. 2010 Formal Ethics Opinion 9. A dramatization disclaimer is not required when using a stock photograph in an advertisement so long as, in the context of the advertisement, the stock photograph is not materially misleading.
2. 2010 Formal Ethics Opinion 11. A lawyer may list membership in Million Dollar Advocates Forum, or another organization with a self-laudatory name, on letterhead only if a disclaimer of similar results and information about the criteria for membership also appears on the letterhead. 
3. 2012 Formal Ethics Opinion 1. Testimonials that discuss characteristics of a lawyer’s client service may be used in lawyer advertising without the use of a disclaimer. Testimonials that refer generally to results may be used so long as the testimonial is accompanied by an appropriate disclaimer. The reference to specific dollar amounts in client testimonials is prohibited.
4. 2012 Formal Ethics Opinion 8. A lawyer may ask a former client for a recommendation to be posted on the lawyer’s profile on a professional networking website and may accept a recommendation if certain conditions are met.
5. 2014 Formal Ethics Opinion 8. A lawyer may accept an invitation from a judge to be a “connection” on a professional networking website, and may endorse a judge. However, a lawyer may not accept a legal skill or expertise endorsement or a recommendation from a judge.

Got an ethics issue you’d like us to write about? Send us a comment.

Sources:

• ABA ETHICSearch http://www.americanbar.org/publications/youraba/2016/july-2016/endorsements-on-social-media-websites--undue-flattery-will-get-y.html
• NC Rules of Professional Conduct https://www.ncbar.gov/for-lawyers/ethics/rules-of-professional-conduct/rule-71-communications-concerning-a-lawyers-services/
• Association of Professional Responsibility Lawyers http://www.aprl.net/