September 24, 2018

American Lawyer Media Follow-up

I hope you enjoyed the webinar today.  The law in this area is far from settled and it is critically important that you should consult applicable rules and opinions in the jurisdiction in which you practice.  However, the following brief description may be helpful to provide some general guidance or at least send you in the right direction to research the issue further.

Jurisdiction:  Lawyers are only permitted to practice law in the jurisdiction in which licensed.  Social media websites can be accessed from anywhere and may give rise to an assertion of practicing law without a license in a particular jurisdiction. To avoid this issue, at a minimum, lawyers should be careful not to provide legal advice on state-specific legal issues unless he or she is licensed in that particular jurisdiction.  Lawyers should also limit feedback, keep information general and use a disclaimer.

Attorney-client Relationship: Lawyers must be careful not to create an attorney-client relationship in any setting including through a webpage or other social media website.  An attorney-client relationship can be formed when an individual “reasonably relies” on an attorney’s advice through a blog entry, listserv or social networking site.

Solicitation/Advertising:  The Supreme Court has determined that a lawyer may advertise services through written, recorded, or electronic communications, including through the use of public media.  While permissible conduct in this area varies from jurisdiction to jurisdiction, lawyers should not engage in instant messaging or participate in chat rooms.  Blogging or other forms of online solicitation may also be a violation of the prohibition of in person, telephonic, or real time electronic communication.

In case you missed it, here’s the top ten ethical concerns that I mentioned during the webinar:

1.  ABA Model Rule 1.6 Confidentiality of Information

2.  ABA Model Rule 1.7 Conflicts of Interest

3.  ABA Model Rule 1.10 Imputation of Conflicts of Interest

4.  ABA Model Rule 1.16 Declining or Terminating Representaion

5.  ABA Model Rule 1.18 Duties to Prospective Client

6.  ABA Model Rule 5.5 Unauthorized Practice of Law: Multijurisdictional Practice of Law.

7.  ABA Model Rule 7.1 Communications Concerning a Lawyer’s Services

8.  ABA Model Rule 7.2 Advertising

9.  ABA Model Rule 7.3 Direct Contact with Prospective Clinets

10.  ABA Model Rule 7.4 Communication of Fields of Practice and Specialization

Practice/Specialization: A lawyer may not mislead or misrepresent his or her practice nor may a lawyer state or imply that he or she is certified as a specialist in a particular field of law.  Attorneys should avoid providing legal advice in areas of law where they are not experienced and should be careful not to misrepresent their practice area of expertise and experience.

Ex Parte Communications: Judges also participate in social networking. Lawyers should be careful in “friending” judge or creating the appearance that they have a “special” relationship with the judge.