I’m going to answer like a lawyer: “It depends.”
Here are the basic principles:
- If an attorney uses a social media account strictly for personal purposes, then advertising and soliciting rules probably don’t apply. (See, e.g., Florida)
- For accounts, profiles, unsolicited communications, or posts made primarily for the purpose of retention of the lawyer or law firm, advertising and soliciting rules would apply. (See, e.g., Florida)
- For “hybrid” accounts, profiles, or posts, then each communication or post must be individually analyzed. (See, e.g., California, Virginia, New York)
In Formal Opinion No. 2012-186, the State Bar of California considered five hypothetical statements from a “hybrid” social media account to determine whether they would fall under attorney advertising rules or be considered solicitation. The examples are instructive:
- “Case finally over. Unanimous verdict! Celebrating tonight.”
According to the Opinion, this statement, standing alone, does not fall under advertising or solicitation rules, because it is not a message or offer “concerning the availability for professional employment.” Explaining further, “Attorney status postings that simply announce recent victories without an accompanying offer about the availability for professional employment generally will not qualify as a communication.”
- “Another great victory in court today! My client is delighted. Who wants to be next?”
If the statement was only “Another great victory in court today!”, it would not fall under advertising or solicitation rules. But by adding the statement “Who wants to be next?”, the lawyer suggests availability for professional employment, converting the post to one subject to advertising and solicitation rules.
- “Won a million dollar verdict. Tell your friends to check out my website.”
Inclusion of the statement “tell your friends to check out my website” conveys a message or offer “concerning the availability for professional employment” and thus the post is subject to advertising and solicitation rules.
- “Won another personal injury case. Call me for a free consultation.”
This statement is similar to the previous one and is subject to advertising and solicitation rules.
- “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
This statement is discussing general legal information and does not fall under advertising and solicitation rules.
Many states have not yet issued any opinions or rules in this area, so make it a habit to occasionally check for new guidance in your jurisdiction.
