Professional Responsibility + Disciplinary Proceedings

In the first post in this series about lawyers and social media, we focused on ethical issues related to LinkedIn and Facebook. This post examines similar issues related to lawyers’ use of Twitter and Groupon.

Twitter

More and more lawyers are using Twitter to communicate with potential clients, advertise their services, and comment on legal topics in order to establish themselves as thought leaders in particular areas of the law. But, lawyers on Twitter may implicate the following Ohio Rules of Professional Conduct:

• Rule 1.6: it should go without saying, but under Rule 1.6, lawyers cannot (without client consent) reveal “information related to the representation of a client.” The rule includes, but is not limited to, information covered by the attorney-client privilege. Twitter makes it all too easy for lawyers to post all sorts of information related to client representation—everything from the fact that the lawyer represents the client, to information related to pending matters. Under the most stringent reading of Rule 1.6, none of this should be posted without client consent, and clients may not want lawyers tweeting about them for a host of good reasons.
• Rule 7.1: lawyers cannot “make or use” a false, misleading, or non-verifiable communication about their services. Most lawyers probably would not tweet blatantly false information about their services, but if lawyers are tweeting (without a disclaimer) about nothing but their legal successes, they may be creating a false impression about their legal skill and experience.
• Rule 7.2: Many lawyers advertise through Twitter (e.g. “Contact me if you need a will,” “if you need advice about a divorce, I may be able to help,” etc.). Under Rule 1.2, any such advertisement must contain the name and office address of the lawyer.
• Rule 7.3: if lawyers are tweeting to someone other than a lawyer or close personal acquaintance, and the tweet can be considered a solicitation (“Contact me if you need a will” or “My firm is so great – who wants to be our next client?”), the tweet should contain the designation “ADVERTISING MATERIAL” or “ADVERTISING ONLY.”

In general, relaying (true) factual information via Twitter usually doesn’t create ethics issues for lawyers. But when lawyers tweet information related to clients, and especially when lawyers are advertising and soliciting, Twitter can be a minefield.

Groupon

At first glance, the notion of lawyers using the group discount website Groupon may seem unusual. The service is best known for offering discounts for everything from dog grooming to new restaurants, but lawyers do sometimes use Groupon to offer services, especially will or estate plan preparation. A recent Groupon offer advertised preparation of a last will and living trust for “50% off.” Lawyers’ use of Groupon raises numerous potential ethics issues, including:

• Rule 5.4: lawyers cannot share fees with non-lawyers. Indiana and Mississippi have both taken issue with Groupon, because the customer remits the legal fee advertised on the site to Groupon, which then takes a cut and sends the rest to the lawyer, which those states have found to be impermissible fee sharing.
• Rule 7.1: lawyers should also beware not to use false or misleading information via Groupon. For example, lawyers should avoid creating the impression that they have a practice area expertise if they don’t.
• Rule 7.2: lawyers advertising through Groupon must abide by Rule 7.2, which requires disclosure of the lawyer’s name and office address.
• Rule 7.3: Groupon ads soliciting business should contain the designation “ADVERTISING MATERIAL” or “ADVERTISING ONLY.”
• Rule 1.15: Groupon’s business model in particular may violate Rule 1.15, under which client funds should be deposited into a trust account (the funds go to Groupon and are remitted to the lawyer only upon completion of the work).
• Rule 1.5: finally, a lawyer cannot charge a “clearly excessive fee.” If a lawyer establishes a Groupon offer to prepare a will for $500, but the lawyer does nothing more than 5 minutes of work changing the name on a form will, the fee is probably excessive.

While the first two posts in this series focused on specific social media services, the next post will be more general, discussing the ethical concerns for lawyers who blog and lawyers who use legal help websites like Avvo.