“… rotten kids.”
Ok, so I’m paraphrasing, but I couldn’t actually get anyone to go on the record! Seriously, anyone who has paid any attention to the ethics rulings coming from the Florida Bar recently must either be scratching their heads, shaking their heads, or just pointing and laughing… unless you’re an attorney in Florida!
There’s no question that legal ethics experts and advisors everywhere have had a really tough time dealing with the march of technology at use in law firms in the 21st century. Among the most vexing issues has been how to apply existing ethical standards to new types of media, particularly social media. The ABA, for its part, has recommended that states add new rules requiring attorneys to keep up with technology to meet competence requirements. Many states, addressing specific examples, have done impressive work making existing rules applicable to new media. And Florida’s reaction?
“LALALALA I CAN’T HEAR YOU!”
Am I being a little over-the-top? Yes. But I really wanted to find a way to use that picture.
Before I go any further, you should know that I hold those charged with maintaining the ethics of our profession in high regard. My mentor, G. Gray Wilson, is about as ethical and honest an attorney as you’ll ever find (and a state bar counselor). I’d turn to self-mutilation before I let him down by committing an ethics violation.
That said, let’s take a look at Florida’s approach to the ethics of social media:
1) Lawyers who are not board certified in a certain area may NOT use the words “certified,” “specialist,” or “expert” in online advertising.
Okay, on a basic level, I understand where the Florida Bar is coming from on this one, and I generally agree. The rules are set up so that attorneys cannot promote their legal services by misrepresenting their own skills. Especially today, when such a limited number of cases go to trial or appeal, the public record regarding an attorney’s or a law firm’s experience in a particular area of law is not exactly easy to come by.
Note: Florida’s standard regarding LinkedIn appears to be roughly identical to a recent opinion from New York. Interestingly, while both opinions say you can’t list your “practice areas” without board certification, do lesser skills (i.e. discovery, mediations, etc.) apply?
Still, it’s Florida’s interpretation of this particular rule that I find a little onerous. In a September 11, 2013 advisory opinion, an attorney was told that unless the attorney is board certified in a particular area of law, inclusion of the attorney’s practice areas under the “Skills & Expertise” section of their own LinkedIn page would be considered a violation of Florida’s ethics rules regarding advertising.
One could argue that sure, an attorney can probably list their practice areas under their background or prior employment, but it’s not really clear. More distressing is that the rule also applies to law firm LinkedIn pages. LinkedIn is a tremendous resource for attorneys, and I’ve already written articles about the influence of LinkedIn, particularly LinkedIn Company pages. As the ethics opinion clearly states: “Certification is specific to individual lawyers; a law firm cannot be certified, and cannot claim specialization or expertise in an area of practice.” Too bad the LinkedIn Company page only allows you to enter what your firm does (such that it is searchable) as “Specialties.”
Ok, well that one’s annoying, but it’s not so bad. You can’t list your firm’s practice areas on LinkedIn… (and no, I don’t believe putting basic information into a little narrative “about me” section qualifies.)
2) Say goodbye to Endorsements from your colleagues!
So YOU can’t list your own practice areas in the Skills & Expertise section, but what about all those little endorsements? Yep, most likely improper too (although not specifically addressed)! See, in order for any of those endorsements to actually appear on your page, you have to approve it! Yep, you’re the firewall! Since you have final editorial control, allowing endorsements to appear on your page will likely qualify as advertising a specialty.
Orlando attorney Luis Gonzalez, interviewed about the new rules, isn’t happy: “I’m not changing a damn thing,” he said. “I want The Bar to come after me. I’m 61 years old, and I’m not going to tolerate garbage like that.” Best of luck!
But wait, if they’re the honest statement of a third-party, couldn’t they qualify as testimonials? Yes! Which adds an entirely new set of restrictions that attorneys must apply before allowing the endorsements to appear! (Remember, the same rules apply!) Doesn’t that make you happy? Still, we’re only half-way through my list, and thus far, it seems as though Florida’s interpretation, although a little uptight, isn’t really at old-man-yelling-at-kids level yet.
3) Your firm’s Tweets must contain your law firm’s name and location… EVERY TIME!
I can’t really fit everything I want to say into 140 characters. I’m a lawyer. There are special places for people like us (… yes, it’s law school… I know, I killed the joke), and Twitter is NOT one of them. At least without some major re-training. However, Florida’s requirement that the firm’s name and a location MUST be included on every Tweet appears more an attempt to stop lawyers from using Twitter rather than help them do it ethically!
My current firm is Stiles Byrum & Horne, in Charlotte NC. The firm name and location take 37 characters, and that’s without certain things like “LLP.” My old firm, Wilson Helms & Cartledge, in Winston-Salem NC, is slightly longer at 45 characters.
Want to attach a link? (Better a link shortener like bit.ly, or you’re screwed.) Retweet something? Respond to a Tweet or directing a message at someone in particular? Once you’ve factored for their handle, and any searchable hashtag you may want to add (they’re actually quite useful, as I describe here… that said, this is still REALLY funny!), you won’t have much real estate left!
But it’s this last one where I think Florida has really crossed the line…
4) Order your firm to remove pictures from social media if the girls’ skirts are “too short.”
That’s right, the group that can actually take away your license to practice law now evaluates your firm’s photos for decency. This, to me, is just going to damn far.
Look, I’ve seen people put some pretty stupid things up on Facebook, and I’ve seen some law firms inappropriately utilize attractive members of their staff (of both genders) as part of their online marketing profiles. But here’s Florida’s rule:
“Inappropriate” photos are not allowed on Facebook.
But who decides what is and isn’t appropriate? Do we really “know it when we see it?” Such a standard smacks of paternalism and is open to interpretation. Moreover, the rule itself gives no guidance as to how it can be followed! Are the skirts to be measured, or is it a guestimate? Is there a different measurement to be applied to someone who is sitting down or standing up?
In my opinion, Florida’s rules undermine the work being done elsewhere to apply existing rules to this new landscape. Instead of adapting the rules to the current technology, Florida rigidly adheres to existing standards adopted for entirely different forms of advertising.
From what I’ve read, the Florida Bar has recently considered some similar issues, and I would imagine the results will be out soon. I hope, for their sake, that they took the time to adequately consider the current marketplace and technology before adhering to rules that were written for a different era.