Today we focus on the ethical implications of endorsements and social media reviews in our final installment of PL Matters’ three-part series exploring the Pennsylvania Bar Association’s recent opinion on the ethics of social media management. While recognizing others’ abilities, and being recognized yourself, is an important marketing tool, the practice of “rating” by peers and clients is not without potential pitfalls. Social media endorsements are varied. Some websites permit users to recommend or endorse another’s skills. Other sites allow clients to submit reviews of an attorney’s performance during representation. Some, like LinkedIn, enable users to delete or limit endorsements. Whatever the manner of an endorsement, be sure to keep the following tips in mind.
Mindful Monitoring: An attorney is not responsible for content that other individuals post on the attorney’s social networking sites, as long as these individuals are not the attorney’s agents. Still, an attorney has a duty to (1) monitor her social networking sites; (2) verify the accuracy of any information posted; and (3) remove or correct any inaccurate endorsements. For example, if an intellectual property attorney is endorsed for experience with criminal law, the attorney has a duty to remove or correct this endorsement. This duty exists no matter who posted the endorsement. Further, an attorney may be obligated to remove endorsements or other postings on sites that the attorney controls that refer to expertise that the attorney does not possess.
Fishing for Compliments? An attorney may solicit reviews from clients or post comments by others relating to the client’s level of satisfaction with the lawyer-client relationship, but must be mindful of Model Rule of Professional Conduct 7.2, which bars advertisements and public communications from containing endorsements by celebrities or public figures. If an ad or public communication does contain a paid endorsement, that communication must disclose that the endorser is being paid or otherwise compensated for appearing in the endorsement.
Also implicated, even if the endorsement is made by a regular, unpaid individual, is Rule 8.4(c), which prohibits dishonest conduct and misrepresentations. An attorney is obligated to correct or remove dishonest endorsements within a reasonable amount of time, or, if the attorney does not control the site, contact the party with control to request removal.
Further, an attorney may not solicit an endorsement, or accept an unsolicited endorsement, from a celebrity or public figure on social media. Further, if you are paying someone to endorse you, this must be disclosed in the endorsement.
Commenting with Confidentiality. An attorney may post comments about successes or respond to reviews and comments on social media. But, this conduct must be performed within the bounds of Model Rule 1.6, which mandates that an attorney may not reveal confidential client information absent client consent. The PBA Ethics Commission has formerly defined “confidential client information” broadly, as “information relating to representation.”
In the review response context, attorneys must also be mindful of Rule 3.6, which stipulates that an attorney who has participated in the investigation or litigation of a matter may not make an extrajudicial statement that will likely be disseminated publicly, or has a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
So, what can you do in response to a review or endorsement? Remember that all communications to a client are confidential, even those from attorney to client, and even when transmitted on social media. Responding to a negative review is permitted, but proceed with caution, and do not, under any circumstances, reveal any confidential information, and make sure your response is an accurate and truthful representation of your services. Similarly, do not post on your own social networking sites any information about ongoing cases or matters, particular when these posts would reveal confidential client information.
Giving Props. An attorney may endorse another attorney on a social networking site, as long as the endorsement is accurate and not misleading. As noted, a celebrity may not endorse an attorney, and neither may a judge. Remember Rule 8.4 – when recommending another lawyer on social media, make sure your endorsement is about skills that you know the attorney actually possesses.
Practice Tips
- Screen your screen. Verify the accuracy of any endorsements, and take steps to remove or amend those that are incorrect or misleading.
- Say you paid. Celebrity endorsements are off-limits; paid endorsements are fine, as long as the endorsement notes that the reviewer was paid
- Keep comments classy. When responding to reviews, do so in a way that does not reveal any confidential client information or information about ongoing matters. Be especially prudent when responding to negative reviews.
- Compliment candidly. Social media praise of another attorney is allowed – just make sure your recommendation is truthful.