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    Dolores Dorsainvil
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Ethics & Social Media

The legal profession is usually the last profession to adapt to new models with regard to business development. However, with the advent of the internet and the far-reaching effects of various social media platforms, more and more lawyers are finding innovative avenues to use these platforms in their business models.

Social media is a great marketing tool that has many benefits. What’s not to love? It is an inexpensive way to provide exposure, to give lawyers name recognition, and most importantly, it generates clients. For example, lawyers are creating attorney blogs to share relevant information about their practice and recent developments in the law. Lawyers are also using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm. These updates include firm announcements, speaking engagements, sponsorships, successes, or any upcoming legal or community service events.  Social media can provide another form of easy access for a lawyer to communicate with other lawyers in similar professional circles, with clients, as well as with friends and family. Additionally, social media is also an easy way to perform basic due diligence and legal research when a lawyer desires additional information about an opposing party, a potential witness, opposing counsel, or any other third parties.

BusinesswomanLawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. An attorney, when making a post to a social media platform may expose confidential or proprietary information. This is especially common when a lawyer posts information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These type of posts are unauthorized disclosures and violate a lawyer’s duty to keep a client’s matter confidential as stated in Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

Lawyers also must adhere to their jurisdiction’s ethical Rules that deal with lawyer advertising. Lawyers must only make truthful statements that are not misleading in their advertisements and these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client. See Rule 7.1. For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of the Rules to create a Facebook page where you state your firm name, i.e. “Smith & Associates” if in fact you are a solo practitioner and do not have any associates within your firm. Lastly, a lawyer should be aware that although social media makes transmission of information effortless and easier, lawyers are still prohibited from soliciting prospective clients through real-time electronic contact. See Rule 7.2.

In conclusion, social media is clearly more than just a fad. However, lawyers must exercise careful judgment when using these tools and should be aware of the issues that may arise from its use. With that said, a careful review of the ethical Rules is critical to a lawyer’s understanding of how to effectively and properly use social media platforms.

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Coupons for Lawyers

With the advent of new technology, including, the internet, business owners are capitalizing on the latest and greatest ways to market their businesses. One such tool, is the latest trend where merchants advertise their products and/or services through the use of daily deal websites, i.e. Groupon or Living Social. On these websites, consumers can sign up to receive an email detailing the online daily deal coupon. These coupons provide drastic discounts upwards of 50 to 70 percent off of a product or service and if enough users commit to purchasing the discounted deal, then the deal goes through and the website company and the participating business split the proceeds of each deal.

There was a time, years ago, when lawyers were prohibited from advertising their services in any medium. Today, times have changed and lawyers that once advertised in the Yellow Pages are now using the internet as a way to attract more business. Because technology continuously evolves and the law remains static, the legal community is now looking more closely at the use of these daily deal websites as a viable option for advertising legal services.  Because website companies like Groupon collect the advanced payment upfront from the consumer and retains a portion for themselves and then turn over the remainder of the fee to the merchant, the real question is, can a lawyer ethically use these websites to advertise their legal services or is it a violation of MRRC 5.4, which prohibits an attorney from splitting a fee with a non-lawyer? MRPC 5.4(a) (Professional Independence of a Lawyer) states, “[a] lawyer or law firm shall not share legal fees with a nonlawyer.” Although Maryland has not yet opined on this issue, other jurisdictions (Missouri, North Carolina, and South Carolina) have, and decided in favor of the lawyer advertising with special considerations and warnings for lawyers who choose to use these websites services. A lawyer in Missouri advertised his legal services and offered a $99 deal for the drafting of a will and a power of attorney and 50 prospective clients purchased his deal. While this may seem like a lucrative way to attract new clients, an attorney must consider whether it is feasible to use such a website for their practice area. For instance, if a lawyer handles primarily contingency fee cases, the daily deal advertising just won’t work because it is not a fixed fee, but rather, can change depending on the individual case. Additionally, there are many ethical implications that must be taken into consideration. For example:

  • Lawyers must still comply with the advertising Rules. [1]
  • Lawyers must, in acting as fiduciaries, treat, unearned fees as property belonging to the client pursuant to MRPC 1.15, and maintain such fees in an attorney trust account until earned.
  • Lawyers must return any unearned fee to the client pursuant to MRPC 1.16(d) Termination of Representation.
  • Lawyers must ensure that the fee charged is reasonable pursuant to Rule 1.5 Fees.
  • Lawyers must not engage in conflicts of interests as outlined in Rule 1.7 Conflicts of Interests.

Because there are countless varied scenarios and the potential for ethical pitfalls, lawyers should cautiously wait to see if this approach to lawyer advertising comports with a lawyer’s ethical requirements under the Rules of Professional Conduct.

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[1] MRPC 7.1 Communications Concerning a Lawyer’s Services states, in part, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. . . ”  MRPC 7.2 Advertising governs a lawyer’s use of a website for marketing and authorize such use for advertisement purposes. Specifically, MRPC 7.2 (a) states, “[s]ubject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.”

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