Hello welcome to this edition of the JACPA Ethics Alert blog which will discuss the revisions to the Guidelines for Networking Sites which were posted on The Florida Bar’s website www.floridabar.org on January 10, 2012.
The Guidelines for Networking Sites were initially approved by the Florida Bar’s Standing Committee on Advertising after the Supreme Court of Florida implemented revisions to Rule 4-7.6 in 2009 (that revised rule was later stayed and then withdrawn by the Court). The revised guidelines state verbatim as follows (with the most relevant sections in bold):
1. “Pages of individual lawyers on social networking sites that are used solely for social purposes to maintain social contact with family and close friends are not subject to the lawyer advertising rules.
2. “Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set forth in Rule 4-7.2. Regulations include prohibitions against any misleading information, which includes references to past results, promises of results, and testimonials. Regulations also include prohibitions against statements characterizing the quality of legal services. Lawyers and law firms should review Rule 4-7.2 in its entirety to comply with its requirements. Additional information is available in the Handbook on Lawyer Advertising and Solicitation on the Florida Bar website.
3. “Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer. Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer. Direct e-mail must comply with the general advertising regulations set forth in Rule 4-7.2 as well as additional requirements set forth in Rule 4-7.6(c). Information on complying with the direct e-mail rules is available in the Handbook on Lawyer Advertising and Solicitation and in the Direct E-Mail Quick Reference Checklist on the Florida Bar website.
“Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page. If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.
“Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations set forth in Rule 4-7.2 as above. A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer. If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is not subject to the lawyer advertising rules under Rule 4-7.1(h). The information remains subject to the general misconduct rule, which prohibits any conduct involving fraud, deceit, dishonesty or misrepresentation under Rules 4-7.1(i) and 4-8.4(c). Any communications that a lawyer makes on an unsolicited basis to prospective clients to obtain “followers” is subject to the lawyer advertising rules, as with any other social media as noted above.
“(a) page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.
“In contrast with a lawyer’s page on a networking site, a banner advertisement posted by a lawyer on a social networking site is subject not only to the requirements of Rule 4-7.2, but also must be filed for review unless the content of the advertisement is limited to the safe harbor information listed in Rule 4-7.2(b)(1). See Rules 4-7.6(d), 4-7.7(a)(2) and 4-7.8(a).”
The only Florida Bar Rule that currently refers to the internet is Rule 4-7.6, which states that lawyer websites are “information upon request” and not subject to regulation under the advertising rules (except for disclosure, general misconduct, and misleading or false content) or the filing requirements.
With great respect for the Standing Committee on Advertising (and Bar Counsel) and its work on these revised guidelines, the guidelines seem to address issues and purport to prohibit media content well beyond the scope of the existing Bar Advertising Rules (and even arguably many of the proposed amendments).
In my opinion, it is not clear that, inter alia, “invitations (sent by the lawyer) directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis, unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer” are solicitations in violation of Rule 4-7.4(a). It is also not clear under the current rules that lawyers “who post information to Twitter and whose postings are generally accessible would be subject to the lawyer advertising regulations set forth in Rule 4-7.2.”
Bottom line: These guidelines have no binding effect; however, it is important for lawyers to be aware of them since they can and will be used in reviewing potential or alleged advertising issues and rule violations related to electronic media. As I have previously stated, the Supreme Court of Florida is considering the comprehensive revisions to the Bar Advertising Rules which were filed by the Bar in July 2011; however, none of the current rules even refer to networking/social media sites (and the current rules were implemented before these sites were even in existence and/or used by lawyers).
I am sure that there will be much more to come on these advertising issues. I will reserve for now any comments on whether the enforcement of certain of these guidelines (and any future Bar rules) may constitute an infringement on lawyer’s right to free speech under the U.S. Constitution. Stay tuned…
…and be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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