There are two sides to the debate about whether state bar associations should enforce stricter regulations on attorney advertising. First, there’s the question of whether the courts should regulate what attorneys can say in print ads. At the center of…
No matter what your profession, web culture and social media has become a major force over the past decade and promises to continue it’s influence in the future. But lawyers have been, on average, more resistant to new technologies than professionals in other fields. There are many reasons for this, one of which includes restrictions on legal advertising that have not stayed current with the tech zeitgeist. I spoke with legal ethics expert Diane Karpman about these regulations, the distinction between social media and advertising, and the importance of lawyers interacting with clients online.
GJEL: Besides the use of social media, are there any aspects of legal ethics that have already been impacted by the internet?
Diane Karpman: Everything’s been impacted by the internet. About six years ago, I began to decline representation of any lawyer not able to do research on the internet or basic email because I determined that they were an accident about to happen. The internet provides lawyers with documentary evidence or proof of their compliance with client demands and duty to communicate with clients. Before, veteran lawyers would say that they had someone who did that for them. But lawyers have gone from having a secretary to not needing one. Before email came along, many attorneys were being disciplined for not being able to interact with clients.
Lawyers essentially have five basic duties for their clients: confidentiality, loyalty, safekeeping of files and money, independent judgment, and communication. That’s why the internet has created such an easy way of communicating with clients. If lawyers aren’t using it, it’s legal malpractice about to happen. We also shouldn’t underestimate the impact the internet has had on legal research. There used to be a pay wall separating some from the ability to obtain cases. Google Scholar is the best thing to happen to lawyers in the last decade.
GJEL: Will the expanding use of social media by the general population have a permanent effect on attorney ethics guidelines?
DK: I’m not sure. There is a historic reaction against technological changes that the bar always takes. They always try to take the old rule and stretch it and see how it will encompass the new technological developments. The biggest problem with social media and lawyer guidelines is that at least in California, anytime a lawyer puts their name on anything, it’s deemed to fall under regulations governing advertising. Every state has very Byzantine regulations regarding lawyer advertising. The overarching theme is that everything lawyers say in advertisements must be true, accurate and not confusing. But these rules fail to take into consideration things like Twitter. If you only have 140 characters you just can’t comply with all the requirements.
People think that what’s online is friendly, but that’s not true when you are a professional. The main problem is that what’s posted on the internet is there forever. It has a permanent effect on attorney ethics guidelines.
Five states are obsessed with enacting stricter attorney advertising laws. Some of the most restrictive are Florida, Texas and Louisiana. Some states even have a requirement that before a lawyer does anything, it must be approved by the state bar.
GJEL: Are there free speech issues associated with social media regulation?
DK: Putting regulations on social media is a violation of freedom of speech. If you have to get pre-approval from the bar, how can you be blogging or tweeting? The social media platforms are stretching the ethical ideas way beyond what has been thought about before.
GJEL: What is your personal view of social media use for lawyers?
DK: I think it’s just terrific. Any way that makes it easier to communicate with clients and potential clients is just terrific. The idea of lawyers being separate from the population is a disservice for the profession. The more that people recognize that lawyers are real human beings is better for everybody.
GJEL: Are certain forms of social media, or certain social platforms, more ethically risky for attorneys than others?
DK: I’m very concerned about lawyers using Facebook. You’ve got cases occurring where lawyers talk about their trials on Facebook and influence jurors. The whole idea of friends on Facebook is difficult to reconcile with… a friend is not someone you have in a professional capacity. A client might want a lawyer to respond to them and find out on Facebook that they are on vacation. This is a bigger problem for younger members of the profession who don’t realize that everything they do is being watched. Lawyers are fiduciaries to their clients, meaning they put the interest of the client above their own, which is in conflict with being friends. A friend means you are equal and you both take care of each other. Lawyers may forget that they’re professionals and that the same rules don’t apply to them. The barrier between a person’s professional career and their social career is being eroded.
Another issue is Twitter, where you can tag certain words, like accident. It’s been suggested that some lawyers will tag the word accident and inappropriately contact victims. There’s been some other ethics opinions about lawyers in chat rooms. There is a difference between solicitations in advertisements.
GJEL: I understand that a number of states have enacted additional guidelines for social media use. Do you think each state should enact specific regulations around use of social media?
DK: Ethics rules are about 50 years behind the reality. When emails started the question was on whether to encrypt messages or not. They realized that email is just like a phone call and it cannot be tapped without the same ethics guidelines. As soon as a rule is enacted it’s almost obsolete. You have to take into consideration the overarching principles that guide the profession. Special rules just look silly. The type of regulation in Florida is just overkill. I almost think it’s unconstitutional just because it’s a prior restraint to freedom of speech.
GJEL: Are there any specific rules of thumb that you think would be beneficial for California lawyers to keep in mind when interacting on social media platforms and devices?
DK: California has very intense advertising rules. But if you boil them down the essence is that they must be true, accurate, and not confusing. The question gets really interesting when a lawyer must look for clients across state boundaries. A class action attorney, for example, could run in to trouble while talking to clients nationwide.
GJEL: Will regulations become more or less restrictive?
DK:The trend is toward less restrictive. The seminal case restricting lawyer advertising is Bates v. State Bar of Arizona, 1977. In that case the court said lawyers have a constitutional right to freedom of expression. But people didn’t know how to find lawyers. Permitting lawyer advertising is an access to justice issue. Without advertising, some people can’t find representation when they need it the most. Indigent or poor people aren’t likely to know where to look for representation, so there’s a pressing need of people with limited needs to find access to justice, and advertising makes this possible. Without it, the white-shoed partners in the multi-storied buildings are going to prevail. At some point you have to say that people need access to attorneys, even if that means releasing restrictions on attorney advertising.
Editor’s Note: Diane’s interview is entirely in her own words. Below are some helpful links about the resources and cases she discussed.
Photo credit: webtreats