Saturday, October 10, 2015

The Biggest Social Media Mistakes Made by Lawyers

Attorneys have taken to social media like they did earlier online technologies – with enthusiasm and just a little naivety.  They can mine LinkedIn for business referral sources like a honey badger, but may think Tinder is something you start a campfire with, and that “Netflix and Chill” involves watching movies and unwinding.  Mistakes will be made.  Here are a few of the biggest:

Underestimating the Power of Social Media

Fueled by Ecstasy at a 1985 Dallas night club, Joe MacMillan, Halt and Catch Fire’s enigmatic technology impresario, declares:

Online could be more.  . . .  It could be universal.  You could live your life there.  It would change everything, I promise you.  The world we live in now is going to look like the Stone Age.
. . .   The physical world is dead.  A pathway is being built.  A way out, into a world of pure information.  A shared consciousness. The future is bearing down on us like a freight train and nobody sees it.

Joe was right.  Social media has become “Your electronic Second Life.” 

Asked why he robbed banks, Willie Sutton supposedly said, “Because that’s where the money is.”  Trolling for clients, an attorney would be foolhardy to ignore social media for the same reason – it’s where the clients are.  Hardbound volumes of Martindale-Hubbell have joined the Montgomery Ward catalog and sandwich board man in the Museum of Marketing Antiquities. 

When seeking information — whether sports scores or a new lawyer — the public goes first, if not exclusively, online.  In January, GlobalWebIndex reported that a typical user spends 1.72 hours per day on social media platforms, about 28% of all online activity.  Seventy-three percent of Americans have a social network profile.  The 2014 ABA Legal Technology Survey found 39.4% of attorneys have generated legal business from blogging.  For solo practitioners the number is 60%; for firms of 50-500 lawyers it’s 50%.  Those are numbers too big to ignore.  An attorney who doesn’t have a social media presence in 2015 is 28% invisible.

Underestimating What it Takes to Build a Social Media Presence

While these numbers suggest blogging is an excellent way to build your social media presence, it takes time — a lot of it — over both the short and long haul.  The goal is to place your blog high enough in search engine results so that when a would-be client goes looking for counsel he finds you.  For this to happen content is king.  Simply hanging out an electronic business card that says “Denver Lawyer” won’t get you noticed.

I smile whenever I recall my firm’s first discussion about creating a website in in 1995, the pre- social media era.  My then-partner Paul Lewis, a Joe MacMillan visionary in his own right, described how our website would include John Moye’s entire Secured Transactions and Loan Documentation Manual and Bill Callison’s treatises on LLCs, LLPs and LLLPs.  “Why would anyone do that?” one of our partners asked, alarmed that we were giving away the store.  The answer, then and now, is that simply hanging out an electronic business card that says “Denver Lawyer” won’t do anything to get you noticed.  Paul understood this.  Under Paul’s leadership our content-rich website won the Silver Webbernaut Award in 1995 and the Platinum Award the following year.  More importantly, it attracted clients having legal issues and needs that our website clearly demonstrated we were competent to handle.

This marketing fundamental has not changed.  With more attorneys shouting online to be heard, an attorney hoping clients will beat an electronic path to her blog must identify with surgical precision those issues clients she wants to attract care about most, write authoritatively about them, and lace posts with the terms they are most likely to search.  This may require developing a new and challenging skill: not thinking like a lawyer. 

To be effective blogging must be habitual.  If you don’t enjoy the process — identifying and developing story ideas, writing, editing, and posting — your time is better spent going to lunch; you will hate blogging and fail miserably at it.  Persistence and content, not the latest SEO strategy, are the keys to rising to the top of the search engine results and staying there.

Overestimating the Power of Social Media

For lawyers seeking new clients — which is to say all lawyers — social media is not only important, it is terribly addictive.  The virtual world, however, should not be mistaken for the whole world.  Having a social media presence, not an existence, is the goal.  Lunch still matters.  It’s a human connection that seals the engagement.  Also, if your client exists only online, there’s a high probability you are being scammed.  Beware online clients too eager to overpay large retainers.

Creating Conflicts of Interest Instead of Clients

Real clients make an appointment; persons wanting free legal advice send an e-mail.  Colorado’s Rule of Professional Conduct 1.18 creates a gotcha for lawyers engaging in social media:  the prospective client. 

With certain exceptions, “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship” becomes a client for purposes of confidentiality.  The Comments make clear that prospective client status may be conferred “regardless of how brief the initial conference may be.”  Worse, from the duty of confidentiality imposed by Rule 1.18(b), disqualification, and its evil twin, vicarious disqualification, flow as easily as Märzenbier from an Oktoberfest keg, and with nearly equal potentially debilitating effect.

Rule 1.18 is not inherently unfair, but absent constant vigilance and professional self-control, a casual and even anonymous online “friend” may be converted into a “prospective client” in a few keystrokes.

Don’t Be Chatty

Attorneys may freely engage in real-time chat, as long as no paying legal business results from it.  That’s because Colo. RPC 7.3(a) includes “real-time electronic contact” among its prohibited means of solicitation, unless the “person contacted is a lawyer . . . or has a family, close personal, or prior professional relationship with the lawyer.”  Further, where permitted, every “electronic communication . . .  soliciting professional employment [must] . . . include the words ‘Advertising Material’ . . . at the beginning and ending of any . . . electronic communication,” unless the recipient is one of the exempted parties under Rule 7.3(a).  Bottom line: if you want to chat online, stick to sports.

Online Sleuthing 

Facebook, Twitter, and Instagram are a fabulous source of free discovery – ask any divorce lawyer or prosecutor.  Just remember this rule: don’t be a sneak.  If a party or witness has posted materials for the world to see, lawyers are not required to avert their eyes.  However, woe unto the attorney who attempts to gain access by “friending” someone under false pretenses, or asks another (including a private investigator) to do so.  The ethics book that will be thrown at him will include Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), 4.1 (truthfulness in statements to others), and 4.4 (respect for the rights of third persons).

Have Fun Out There

The moral is not to avoid social media, even were that possible.  Your electronic second life is fun, and social media is an essential component of client generation and network building.  Just remember that, while it may still be the Wild Wild Web, ethics rules apply, and attorney regulators are online, too.

An abridged version of this blog originally appeared in the 14 September 2015 edition Law Week Colorado.