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Ethics, Advertising and Social Networks

By Lisa Fantino

Who could believe that "socializing" could get attorneys into trouble? Yet, with all of this Linking in, Facebooking, Tweeting and now "pinning," lawyers are on the horns of an ethical dilemma. How do we stay current with modern communication in the face of a stringent code for professional conduct on attorney advertising?

The New York State Code of Professional Conduct, Rule 7.1 (f) states: "Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled "Attorney Advertising" on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words "Attorney Advertising" shall appear therein. In the case of electronic mail, the subject line shall contain the notation "ATTORNEY ADVERTISING."

Most of us are aware that if the electronic communications are to current clients or other lawyers, such communications are generally exempt from this labeling requirement. (See Comment 7) Yet, what about blogs, tweets, status updates and your pinboard on Pinterest?

Comment 6 to Rule 7.1 makes it pretty clear that "Advertising by lawyers consists of communications made in any form about the lawyer or the law firm's services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication." One could argue that busy lawyers would not bother writing blogs or tweeting unless the primary purpose of such efforts was to generate billable hours; yet, as a journalist, I would argue that I simply love to write. I enjoy the mental gymnastics of presenting an argument, premises, analysis on any given topic, whether the issue is intellectual property or the death of a rock star. I do it because I love the art of the word and the wit which comes in snappy headlines/tweets.

Do I make new friends along the way? Sure. However, since my blog barely registers a blip on the cyber radar of SEO geeks and I have yet to hear from anyone who reads my tweets, it is highly doubtful that the primary purpose of my efforts is for pecuniary gain from the communication itself.

Comment 8 exempts coffee mugs, t-shirts, pens and pencils which display an attorney's name and contact information, declaring they are not advertising, but considered to be the marketing tools of branding. Really, who writes this stuff? If the attorney or firm is displaying contact information on t-shirts and mugs, what other purpose is there other than to bring clients in the front door? Did the drafters of these rules give much thought to them before casting them in cyber granite?

Certainly, as officers of the court, we are held to a higher standard and may not promulgate fraud, deceit and the like. However, attorneys do not sell their souls for admission to the bar, and participating in 21st century platforms of social communication should not be a threat but a gateway into a social discourse that elevates the intellectual playing field rather than dampens the meaningful dialogue which might result.

Lisa Fantino is an award-winning journalist and solo practitioner. She has a general practice firm in Mamaroneck, New York, where she focuses on entertainment and intellectual property, as well as general corporate transactional and litigation matters. She can be found at http://www.LisaFantino.com or blogging as http://ladylitigator.wordpress.com.

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This page contains a single entry from the blog posted on May 25, 2012 9:17 AM.

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