Social media no longer is the province of only those who are college-aged or younger. Indeed, businesses of all types now seek to capitalize on social media connections, and law firms are no exception. Many firms now have their own Facebook pages, for example, and many lawyers are seeking to attract attention through a variety of other social media sites such as LinkedIn and Twitter. Also, more and more, information is being stored in the cloud.
Notwithstanding this gravitational pull toward clouds and social media, lawyers need to remain mindful of ethical and practical constraints, so that they do not feel more pain than joy in this context.
Targeted Advertising by Lawyers
There are numerous potential issues, two of which are touched on here. The first is best illustrated by a hypothetical: Suppose a person posts on Facebook that she was recently injured in an automobile accident. Shortly thereafter, Facebook pushes an ad to her from a personal injury law firm. Is there a problem?
As far back as the 1970s, the U.S. Supreme Court held that it was permissible for law firms to advertise generally. But this hypothetical represents targeted, not general, advertising.
In the non-legal context, the FTC has weighed in and has recommended certain principles that should apply when it comes to targeted (or behavioral) advertising. In a nutshell, the FTC suggests that websites should be transparent so users are informed as to how they may be tracked and targeted, and that choice should be provided so users can opt out of this process.
Back to the legal context, ethical rules provide that a solicitation from a lawyer to a potential client cannot contain untrue statements, cannot confuse or be deceptive, and cannot intrude. When it comes to our hypothetical, the advertisement of the personal injury law firm to the injured Facebook user could potentially be considered deceptive and/or intrusive, as the injured user does not understand or know why she has received the advertisement in response to her injury.
Thus, the hypothetical targeted advertising probably is not a good practice, unless people somehow could choose to receive such ads — but it is difficult to imagine how that would unfold in this precise setting, as people do not know in advance that they will be injured. Moreover, recent studies show that while social media might be good for branding generally, it does not necessarily translate into true revenue from direct advertising.
So while a law firm’s Facebook page may be good image building, the hypothetical targeted advertising, whether proper or not, might not lead to legal work anyway. Additionally, other studies indicate that the public views targeted advertising in a dim light, and this may be yet another reason not to engage in the targeted advertising suggested by the hypothetical.
Legal Issues in the Cloud
The cloud presents another area where thorny issues can emerge for lawyers. It is not uncommon for lawyers now to consider to engage a cloud provider for storage of client and other data. The ABA Commission on Ethics 20/20 recently highlighted some real cloud issues that need to be addressed.
Those cloud issues include:
- The potential unauthorized access to client confidential data in the cloud;
- The possible failure properly to back up data stored in the cloud;
- The storage of information in countries where there are less legal protections than in the United States;
- A lawyer’s potential inability to access data if the relationship with the cloud provider changes or ends;
- The possible lack of clarity in terms of who owns the data stored in the cloud;
- The prospect of inadequate encryption;
- The extent of consent needed from clients before lawyers engage cloud providers to store data; and
- Policies as to cloud data destruction when data no longer is needed.
And, of course, there are other issues, such as the need to comply with regulatory requirements, like HIPAA requirements for sensitive medical information.
While social media and the cloud present new ways to communicate and store information, the ethical responsibilities of lawyers remain intact. Lawyers therefore must be educated and mindful as they move forward in the new high-tech world.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.