Saturday, January 18, 2014

Ethics of Facebook, Twitter, and Blogs. Oh, and LinkedIn - For attorneys.

In Florida, among attorneys, there is a crisis of ethics.  No, no, not like that.  Not at all like that.  Well, that's another discussion but I can not necessarily have it on this blog.  Instead, it is the ethics of being able to use websites that normal ordinary people use everyday.

Newly filed is a case that is pending against the Florida Bar of Searcy v. Florida Bar (complaint).  The law firm of Searcy Denny Scarola Barnhardt & Shipley published on their blog comments regarding opinions that were not "objectively verifiable."  Such comments were that the days "when we could trust big corporations . . . are over," and that "[g]overnment regulation of Corporate America's disregard of consumer safety has been lackadaisical at best," and that "when it comes to 'tort reform' there is a single winner: the insurance industry."

The ABA asks, "is Florida too tough on lawyers using linkedin and twitter?"

So, what we have is a new form of media, the internet, that we are trying to form into old restrictions on the ability to publish and advertise and communicate that are now being eradicated by the ease of use and openness of the internet.  See Florida Bar Revokes advisory opinion.  It is obvious that the attorneys of Florida are at a crossroads in how exactly to handle the freedom that is provided through ease of rapid communication which is unparalleled in our history and will grow exponentially.

The simple fact is that the internet can be abused by attorneys.  The internet can be abused by anyone.


Now I don't handle many personal injury cases, but ambulance chasing is an old lawyer joke.  The image of a lawyer chasing an ambulance is practically unheard of, at least I never hear it.  Instead, they must interrupt Jeopardy and late night Perry Mason episodes to inform us to the sound of boring background music that they are compassionate people who will work hard on your case.  But if one of them decided to ambulance chase on the internet, they could follow individuals in their target area, say, the entire State of Florida, and look for people announcing major life events on twitter.

A search of #CarWreck on twitter, just one of many possible searches, at 10:16 AM on 1/18/2014, yielded evidence of at least four people who had been in car accidents in the last week  An auto responder under could be setup to tweet back at that person, "Hey, I know a great attorney! Call 904-383-7448."

And to blatantly advertise, yes I do handle a small number of select personal injury cases in Florida and Georgia.

Surprisingly, or maybe not surprisingly, two law firms also appear in the search for #carwreck

Now, a lawyer or a law firm simply using a hashtag "#carwreck" is not ambulance chasing, but it is blatant free advertising.  One statement is a boring "objectively verifiable" statement, which if said in the midst of a normal "conversation" would be quite a non-sequitur.  However, searching for a hashtag is a request for information, the same as a website.

If the law firm had tweeted at a Georgia car wreck victim say, "@carwreckvictim Hey, I heard you were in a wreck.  Visit!" It would be a different story.

Twitter is a place for open conversation.  An attorney should regulate himself on twitter the same as they would over a message board, irc chat room, in a restaurant, on a beach, or walking to the courthouse.  Twitter can exist in two basic ethical states.  Twitter can be information on demand, such as the use of the "#" hashtag.  Or Twitter can be a shouting match, a place to watch the random thoughts of the world fly by, and give you an opportunity to engage in conversation.

This duality is the core of the problem in determining the ethics of twitter.  Another duality that was created, mostly because of Facebook, was a suggestion and/or requirement that there be a clear divide between, well, what is best described as lawyer Graham and citizen Graham.  Despite the fact that I am a solo practitioner and it's very difficult for me to confuse anyone, I still have a second Facebook page for my law firm, separate from my personal Facebook.   Now, what's really bizzare about the split in the firm page and the Facebook page, is that essentially it doesn't matter.  My personal account is linked as the owner of the firm, just as any other member could be linked to the firm.  Essentially, the formation of my corporate structure, and the creation of a separate Facebook page, has done nothing to truly separate myself from this corporate Facebook account.

In this attorney's personal opinion, it is more genuine and ethical for an attorney using social media to be themselves.  Now I don't often hang out in bars unless I'm watching a concert, but if any attorney came forward into a barroom conversation and started saying "Get the recovery that you need and deserve.  Hashtag Website. Hashtag Georgia.  Hashtag Painlaw," it is obvious that the person would get up and walk away.  To forward the cause of what it is to be an attorney, it is again my opinion that the use of firm twitter accounts should be discouraged.  However, it is practically necessary for the purposes of advertisement.

If I were to make a bright line rule, for Facebook, Twitter, and Linkedin, or the internet as a whole, it is simply the same as rules governing an attorney, in public.  A virtual public, to be sure, but public nonetheless.

Facebook, Twitter, Advertising

Social media allows you to be anti-social.  Likewise, social media allows you to be overly-social.

Hiring twelve men with megaphones to shout your name and number from the street corner near the courthouse, would be advertising.

Guerrilla Marketing

Guerrilla marketing can take place either live or automated.  This is essentially ambulance chasing.  Various methods of exploitation of this form of marketing can exist.

Automated marketing could require the hiring of a company, however an attorney with the proper technical knowledge could easily build a server that would script automated responses.  From this one computer, and some clever word manipulation, it could appear that hundreds of people are discussing your law firm or the prowess of your attorneys.  Now, why hundreds of people are discussing your law firm, may become an issue if the story is not believable.  It's obvious that this form of marketing, or direct contact looking for people who were involved in an accident, is an issue.  "Sorry to hear about your accident, #GrahamisTheBestAttorneyEver #GiveHimACall?"

And what if such searching and responding were not robots, but instead people, would they not also be subject to attorney regulation?

There is a problem at this juncture, with search optimization companies, or SEO.  SEO companies have already engaged in both automated and non-automated entries on websites, to boost page rankings of attorneys.  Big money is paid for these links.  I think this is all unethical.

Paid Advertising

Twitter has a character limitation.  However, what is generally desired from a lawyers tweet is a call to action.  "Click this link!"  "Look at me!"  "Pay attention!"  "Over here!"  Its 140 character limitation means that if I include my address and my phone number, like a skeleton ad, I only have 82 more characters left.

The differentiating point of the speech on the internet that should be approved is when the advertising is paid.  If the advertising is paid advertising on another website, whose content is beyond the control of the firm, then such advertising should be scrutinized.  The bar should scrutnize both the "tweet" which would be paid to be a sponsored advertisement, and the webpage that is in the call to action in the tweet.

LinkedIn categories, Customer Reviews

As soon as I saw the LinkedIn categories where people put down that they have specialties, I knew that this was a problem.  When they allowed people to endorse other people for specific categories, I cringed.  However, there is nothing I can do about this.  Like the majority of people, I have a LinkedIn profile, but I do not use it.  Unlike most people, I don't generally use Facebook either.  

I've said it before, it is my opinion that the use of these specialties are unethical.   The endorsements, well, I have little control over that.

Customer reviews are a completely different matter entirely.   I love getting positive feedback from a client.  For all the positive feedback I get from my clients, I sincerely expect more feedback on the Internet.  But that's probably just my ego.  Still, it surprises me quite often to see some, often solo attorneys, with so many positive client reviews.   It doesn't surprise me that the linkedin profiles and the avvo profiles of some of the best attorneys contain no client reviews, no picture, and sometimes incorrect information.

Customer reviews are the first amendment right of a customer.  Endorsements on linkedin are the first amendment right of the customer.  Unless they were solicited or requested, or paid for, they are not content that is subject to attorney regulation.

I think that assigning an attorney a number on a scale of 1-10 is ridiculous.  But I'm also a little nutty on this, because I don't believe the Martindale Hubble system of ranking should be used.  I don't believe it should be allowed to be used in attorney advertising, and I don't believe it should be allowed in general.


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