Innovative attorneys and firms alike appreciate the power of social media and what it entails, from marketing their services to creating content for users to share. Many firms have begun to embrace social media, currently 85% of leading law firms use social media, 60% maintain blogs and 41% report social media has resulted in new work.¹ This realization amongst a large sector of the legal profession has already manifested a change in approach towards social media and as a result has spurred recent State Bar and ABA Opinions.² These Opinions mark the progress of social media as legitimate legal subject matter and indicate that social media and the practice of law are no longer exclusive of one another.

In the digital age many of us have an online presence and for those practicing law their online presence will likely face scrutiny from their State Bar Association. Technology grows in accordance to the exponential growth curve and thus it is both difficult and cumbersome for any State Bar Association to keep up and provide guidance as to the proper conduct one must adhere to in order to avoid ethical sanctions. Your obligation as a member of The Florida Bar is to navigate the waters of social media ethically. However, when the ethical rules resemble that of a labyrinth, a chilling uncertainty is sure to loom. One example of a social media ethical uncertainty can be found in Facebook’s feature to ‘Repost’ or Twitter’s feature to ‘Re-Tweet’.

Any tweet or Facebook post by a lawyer that: promises a specific result, predicts success in a legal matter, or states that a lawyer is the “one of the best” in a field of law, would be in clear violation of the FL Bar Rules because they are not objectively verifiable and are misleading by nature.³ But what if you Re-Tweet your client’s tweet or Repost your client’s Facebook post, which enthusiastically proclaims that you as a lawyer “IS BEST LAWYER IN THE STATE.” Would this be permissible? One could reason so, after all this could be regarded as a testimonial, which according to the FL Bar Rules are not only permissible but, “beneficial to the prospective clients”⁴ After all, you did not expressly tell the client to write or draft what the client posted or tweeted or offered a discount in return for the favorable comment but merely shared it. Although you did not write or draft the Post/Tweet, offer a discount or give something of value, or instruct a client to write you are the “BEST LAWYER IN THE STATE.” The fact that another user wrote the statement on your social media site may expose you to ethical violations. “The South Carolina Bar stated, in Advisory Opinion 99-09 (1999), that a lawyer must act against too-favorable comments posted by a client on the lawyer’s own online site. Once a lawyer learns of these comments, the lawyer must tell the client to conform its statements to the ethics rules. If the client refuses, the lawyer must stop representing the client, or the lawyer will be deemed to have authorized or adopted the comments.”⁵ Regardless of the fact, that this Opinion was from sixteen years ago and not from Florida; the fact still remains that many State Bar Opinions and Regulations when examining an area of uncertainty, borrow from other State Bar Opinions on interrelated matters. Moreover, given the reputation that Florida has one of the most stringent advertisement requirements lends itself to believe that one should adopt a conservative stance on social media sharing in order to avoid potential ethic violations.

¹ ALM Legal Intelligence Report, Fans, Followers and Connections: Social Media ROI for Law Firms. (Last visited March 15, 2015).
²See e.g., Fla. Judicial Ethics Advisory Comm., Formal Op. 2009-20 (2009) available here. (Last visited March 15, 2015).
³ Rules Regulating the Florida Bar, supra note 15, at Rule 4-7.13 Comment.
⁴ Id.
⁵ Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media is Obvious. It’s also Dangerous, available here. (Last visited March 15, 2015).