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MCLE Self-Assessment Test

Social media mirrors real life, proposed ethics opinion says

By Amy Yarbrough
Staff Writer

Lawyers should follow the same ethical rules whether advertising themselves in a phone book or on Facebook.

That’s the gist of a proposed ethics opinion by the State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) which states that an attorney’s postings on Facebook or other social media are bound by the same rules as those governing more traditional forms of advertising.

When it comes to advertising their firms or services, attorneys must comply with the California Business and Professions Code and Rule 1-400 of the State Bar’s Rules of Professional Conduct.  Rule 1-400 states, among other things, that attorneys must not market themselves to potential clients using false statements or hold themselves out to be a “certified specialist” unless they’ve received such a designation from the Board of Legal Specialization or an entity accredited by the State Bar. Attorneys must also take care not to guarantee or predict the result of a representation.

“The restrictions imposed by the professional responsibility rules and standards governing attorney advertising are not relaxed merely because such compliance might be more difficult or awkward in a social media setting,” the proposed opinion 10-0001 states.

Ethics expert Wendy Patrick noted that every year at the State Bar Annual Meeting there seem to be more and more programs designed to teach lawyers how to use social media to increase their exposure. Patrick, who chairs COPRAC, offered her personal views on the topic, which she explained were not made on behalf of the Committee.

“I believe this opinion will provide helpful guidance to lawyers given the incredible popularity of social media use among legal practitioners,” Patrick said in an email. “Ethics rules apply online as well as offline.”

Despite a cool response in the past, law firms have started to embrace social networking, according to a recent survey by ALM Legal Intelligence, “Fans, Followers and Connections:  Social Media ROI for Law Firms.” The online survey conducted between Dec. 15, 2011 and Jan. 17, 2012, found that nearly 85 percent of law firms represented had lawyers who were using social media sites like Facebook and Twitter and the professional networking site LinkedIn.

David Cameron Carr, a San Diego-based legal ethics attorney, said COPRAC's proposed opinion seems “pretty straightforward,” noting that “the fact that you are using a different medium doesn't relieve you of your obligation.

“The problem with new media is it makes it possible to move large amounts of information quickly and cheaply. But that's a dual-edged sword,” Carr added. “We are all having to learn to adapt to this technology.”

The social networking opinion marks the latest of several COPRAC opinions that address ethics in the context of new technology. In 2010, for example, the committee issued formal advisory opinion 2010-179, which discusses a lawyer's duty to take steps to ensure their use of technology does not compromise confidential client information.

Those wishing to submit comments on the proposed opinion may direct them to Angela Marlaud, Office of Professional Competence, Planning and Development, State Bar of California, 180 Howard Street, San Francisco CA 94105-1639, or email, Comments must be received by 5 p.m. on July 2.