Byte of Prevention Blog

by Jay Reeves |

Proposed Ruling Bans Prizes for Facebook “Likes”

If you’re thinking about offering a prize to anyone who likes you on Facebook, better think again.

You might be asking for a State Bar grievance.

The State Bar ethics committee has proposed an opinion that says a law firm can’t offer an incentive for people to engage with its social media account. To do so would be misleading under Rule 7.1 of the Rules of Professional Conduct. It would also violate the prohibition in Rule 7.2 against giving anything of value in exchange for a recommendation of the lawyer’s services.

It’s perfectly fine for lawyers to have a robust online presence and to encourage or invite other users to like, share, follow, or otherwise interact with their social media accounts. The proposed opinion simply draws a line at providing a reward, inducement or incentive for doing so.

Got a comment about Proposed 2019 Formal Ethics Opinion 6? Send it to the State Bar Ethics Committee c/o Lanice Heidbrink at lheidbrink@ no later than October 4, 2019.

The Inquiry

Lawyer maintains an account for his law practice on various social media platforms. These platforms allow social media users to “connect” with other users, including both individuals and business-related entities, through the use of “likes,” “follows,” and “subscriptions.” Some platforms also allow users to comment on posted content or share posted content on their own social networks.

To increase his social media exposure, Lawyer wants to offer a prize incentive to anyone who connects or interacts with any of his social media platforms. All users who connect or interact with Lawyer’s law practice social media account will be entered into a drawing for a prize. The giveaway is open to all users of the social media platform used by Lawyer.

May Lawyer offer an incentive to all social media users to connect or interact with Lawyer’s law practice social media account?

The Opinion

No. If a social media platform will broadcast or display a user’s connection or interaction with Lawyer’s law practice social media account to other users of the platform, Lawyer may not offer prize chances in exchange for activity on or with his social media accounts.

Rule 7.2(b) Analysis

Generally, lawyers may not give anything of value to a person for recommending the lawyer’s services. Rule 7.2(b). Certain social media platforms, such as Facebook, allow users to connect with or otherwise follow a business or service entity’s social media account by “liking” the entity on the social media platform. Similarly, users may also comment on or share social media posts made by the business or service entity’s account. The user’s decision to “like” or follow the entity, and the user’s comments on the entity’s posts, are then displayed not only within the user’s social media feed, but can also be displayed on the feeds of other users who have previously connected with that user. Also, when an individual “likes” a business’s social media page, that business’s posts/advertisements may appear in the individual’s social media feed and may appear in the news feeds of the individual’s other “friends” or connections with a caption such as “Jane Smith likes No Name law firm.”

Rule 7.1(a) Analysis

Additionally, a lawyer may not make a false or misleading communication about the lawyer or the lawyer’s services. Rule 7.1(a). A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading. The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange for recommending services is to ensure that recommendations for a lawyer’s services are based upon actual experiences or legitimate opinions of the lawyer’s service, rather than financial incentive.

The displayed “like” of a law practice may indicate some prior experience with the law practice or the personnel associated with the practice upon which the user’s “liking” of the practice is based. Similarly, the credibility attributed to a particular social media account could be influenced by the number of account followers or subscribers. When the “like” or follow of a law practice’s social media account is based upon the user’s interest in a prize giveaway, the incentivized “like,” follow, or other interaction received by Lawyer and displayed on social media is misleading in violation of Rule 7.1(a).

7 Other Ethics Opinions on Online Marketing

  1. A lawyer may advertise on a website that offers daily discounts to consumers where the website company’s compensation is a percentage of the amount paid to the lawyer if certain disclosures are made and certain conditions are satisfied. 2011 Formal Ethics Opinion 10
  2. 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. 2012 Formal Ethics Opinion 1
  3. 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. 2012 Formal Ethics Opinion 8
  4. 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. 2014 Formal Ethics Opinion 8
  5. A lawyer may not offer a computer tablet to a prospective client in a direct mail solicitation letter. 2015 Formal Ethics Opinion 3
  6. Lawyers may advertise through a text message service that allows the user to initiate live telephone communication. 2017 Formal Ethics Opinion 1
  7. A billboard advertisement need not contain the lawyer’s name, firm name, or the firm’s office address if the URL address on the advertisement lands on the lawyer’s website where such information can be easily found. 2017 Formal Ethics Opinion 3

About the Author

Jay Reeves

Jay Reeves practiced law in North Carolina and South Carolina. He was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He is the author of The Most Powerful Attorney in the World, a collection of short stories from a law life well-lived, which as the seasons pass becomes less about law and liability and more about loss, love, longing, laughter and life's lasting luminescence.

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