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.
