Some of the critical ingredients to professional “success” include some combination of skill and marketability. Either, on their own, are insufficient for professional’s to meet their goals. Today, marketing takes many forms – whether through social media, television, or traditional print. Developing an effective message and reaching the right audience are just as important as developing the skills of your trade. Many professionals have turned to blogs and other forms of social media as a form of marketing. However, these avenues of communication are not free of risk, especially with respect to the ethical limitations of attorney advertising. One attorney in Virginia learned this lesson the hard way.
The Rules of Professional Conduct provide that a lawyer may not make a false or misleading communication about the lawyer or the lawyer’s services. To this end, lawyers should not promote any advertisement that creates false expectations, such as reliance on past victories to create a false impression of future success. Further, in accordance with the ethical requirements of confidentiality, attorneys should be sure that their promotional materials do not divulge any private information about other current or past clients.
Attorneys may not realize that these rules apply in all communications about a lawyer’s services, even if not considered a traditional “advertisement.” Take for example the recent decision by the Virginia Supreme Court in which it held that an attorney’s blog, which discussed cases in which he obtained successful outcomes for clients, was subject to regulation under the state’s rules of professional conduct. The blog was accessible through the firm’s website and discussed various legal issues, but many of the posts described the attorney’s success in specific cases. The Virginia State Bar took notice of the posts, which it believed constituted false or misleading “advertising” based on the implication of future success and a violation of the duty of confidentiality by discussing specific representations in contravention of the rules of professional conduct. On appeal, the Virginia Supreme Court agreed with the bar’s determination that the posts were advertisements that were potentially misleading.
Professional Liability Matters has previously warned of the dangers of relaxing risk management protocol when engaged in social media platforms. The same rules apply. Regardless of the media in which an attorney chooses to promote practice, the attorney should be cognizant of how that information could be interpreted by a would-be client and, perhaps, the disciplinary board.