Social Media Compliance for Lawyer Influencers, Legal Industry Creators, and Law Firms

Nearly every lawyer uses social media: 81%, according to the ABA’s 2023 TechReport. Of those lawyers, 31% say a new client retained them because of their social media presence.

No wonder “lawfluencers” are on the rise, with top lawyer creators attracting millions of followers on Instagram and TikTok.

While reaping the brand-building benefits of social media, legal influencers must also be aware of the regulatory and legal limitations on social media content and advertising, including:

• State bar association rules of professional conduct. Every state bar association in the United States has rules on advertising and client solicitations which include social media content, as well as standards for professional conduct that must be upheld.
• Federal Trade Commission (FTC) guidelines. The FTC regulates advertising on social media to protect consumers against unfair and deceptive practices.
• State and federal trademark and copyright laws. Copyright and trademark laws safeguard intellectual property, such as brand names and original works of authorship.

Call (713) 909-7323 or contact us online to speak with a social media law attorney at Hendershot Cowart P.C. about your online presence. Our firm serves clients across Texas and the United States.

Know Your State Bar Rules on Advertising, Solicitation

Most state bar associations model their advertising rules after rules 7.1, 7.2, and 7.3 of the American Bar Association’s (ABA) Model Rules of Professional Conduct:

• ABA Model Rule 7.1: Communications Concerning a Lawyer's Services. Lawyers are prohibited from making false or misleading communications about themselves or their services.
• ABA Model Rule 7.2: Communications Concerning a Lawyer's Services (Specific Rules) outlines the regulations for lawyers regarding advertising and communication about their legal services. Lawyers can advertise through various media channels, including websites, social media, brochures, and even print or TV ads, to inform the public about their services. Lawyers may not state or imply they are certified as a specialist in a particular field of law (unless certified by an appropriate authority). Any communication made under this rule must include the name and contact information of at least one lawyer or law firm responsible for its content.
• ABA Model Rule 7.3: Solicitation of Clients focuses on how lawyers can solicit clients. It restricts lawyers from using in-person meetings, phone calls, or other real-time communication – including commenting or direct messaging through social media – to solicit clients if the lawyer's primary motivation is financial gain. There are exceptions, though, for contacting existing clients, lawyers, or people with a pre-existing relationship. The rule also prohibits solicitation that uses harassment, coercion, or pressure tactics, or provided misleading information about the attorney’s qualifications or services.

Visit your state bar association for specific rules for advertising and the solicitation of clients in your state.

Social Media Ethics for Attorneys

State bar rules that govern professional conduct in the real world apply to social media as well. While social media’s casual, quick-paced culture may lull you into loosening your tie, you still must uphold the ethical obligations of your profession.

Watch for these five ethical danger zones for lawyer creators:

1. Client confidentiality. Never disclose confidential client information on social media. This includes replying to reviews on third-party sites like Yelp or Google. Do not counter a bad review by divulging client information.
2. Strong opinions. If you express an opinion on one side of an issue on social media, you may impair your ability to advocate for the other side with a client. And since your comments are public and easily shared, they can be misconstrued and taken out of context. Neutral content is best.
3. Giving legal advice. Keep your social media content and commentary general and informational. Commenting on a specific set of facts for one individual or organization could be viewed as legal advice and inadvertently create an attorney-client relationship. Consider the use of a disclaimer to protect against this risk.
4. Professionalism. Your conduct on social media reflects you, your firm, and the legal system as a whole. Don’t overshare. Never make false or misleading statements. Avoid using insulting or disparaging language, making personal attacks, and joking about sensitive legal matters.
5. AI. You have an ethical duty to ensure that your content meets your state’s professional standards. “ChatGPT made me do it” is no defense for posting inaccurate or unprofessional content. If you use artificial intelligence to support your content creation, make sure you vet and approve the content before posting.

In summary, keep your social media content informational and educational, and refrain from using inflammatory or unprofessional language.

Words and Phrases Lawyers Should Avoid on Social Media

When posting content to social media, avoid words and phrases that suggest guaranteed outcomes, imply legal advice, or may be misleading.

Here are some words and phrases to avoid as an attorney on social media:

• Bragging or making claims you can’t support, such as “top lawyer” or “most experienced”.
• Avoid the word “advice” on social media or directly replying to specific legal questions. Instead, “share insights” or “highlight key considerations”. These phrases keep your post or video in the realm of educational content and would not likely be considered legal advice. Refer followers to an attorney for advice on their specific situation and include a disclaimer as needed.
• Be careful with comparisons with other attorneys or firms, like “best lawyer in town” or “number one”, unless supported with objective, verifiable data.
• Dollar amounts. Per Gene Major, Director of the State Bar Advertising Review Department, “if you list a dollar amount in your ad, on your website, or in any other public communication, then it must include the actual amount received by your client. If you list an overall recovery amount, the same rule requires that you also list the amount of attorney’s fees and litigation expenses that were withheld from whatever your client received.”
• Promises of an outcome, like “guaranteed win” or “always successful”.
• Designating yourself or your firm as an expert or specialist without meeting specific requirements. Avoid words like “expert” or “certified” (unless you are board-certified and follow the guidelines for certification in your state).

You may also want to avoid calls to action, like “contact me” or “call for a free consultation.”

Why?

Posting purely educational content is generally not limited by Texas or ABA rules. For instance, a LinkedIn post listing the major impacts of the Supreme Court overturning 1984’s Chevron v. Natural Resources Defense Council decision, by itself, would likely be considered educational content.

But if you add a call to action at the end of the post, like, “contact our firm for an assessment of the Chevron reversal’s impact on your business,” the entire post would likely qualify as an advertisement and require prior approval in some states.

In Texas, for example, all advertisements must be filed with the state bar. However, according to Texas Disciplinary Rule of Professional Conduct 7.07, “communications need not be filed at all if they were not prepared to secure paid professional employment.”

FTC Guidelines for Social Media Legal Influencers

While most legal creators are promoting their own services, not endorsing others, you should be familiar with the FTC’s Guides Concerning Use of Endorsements and Testimonials in Advertising. These guidelines were revised in 2023 to reflect the growing role of social media in advertising and business development.

The FTC requires influencers and anyone promoting products or services on social media to clearly disclose any sponsorships or paid endorsements.

What constitutes a clear disclosure?

Using “#ad” or the social media platform’s built-in disclosure tools to disclose a paid relationship with a brand or product is not sufficient.

• Video endorsements must include a disclosure visually on screen;
• Audio content must include a verbal disclosure; and
• Written disclosures must use text that is easy to read and understand and that stands out from the background.

If you make an endorsement in a live stream, repeat the disclosure both verbally and visually throughout the stream. This ensures viewers joining later catch the information.

Visit “FTC Compliance For Social Media Endorsements” for more guidance on how and what to disclose on social media, especially when endorsing a product or service as a “legal expert”.

Copyright and Trademark Use & Protection for Social Media “Lawfluencers”

Your online content is protected by federal copyright laws, and that protection begins automatically when the work is created. You can register your work with the U.S. Copyright Office to gain certain additional legal rights – such as the right to bring a lawsuit to enforce your rights – but it is not required.

How can you protect your social media content from copyright or trademark infringement?

• Register trademarks for logos, assumed names, social media handles, taglines, product names, etc. to legally protect them. Trademarks can be registered at the federal or state level in Texas.
• Monitor social media platforms for unauthorized use of your intellectual property, such as reposting your content without attribution or imitations of your logo or brand name.
• Send DMCA or takedown notices to social media platforms when your intellectual property is used without permission.
• Take legal action, such as a demand letter, or you can file a federal lawsuit if your work is registered with the U.S. Copyright Office.

Remember that trademark and copyright protection go both ways! Make sure your content is original and your own independent creation. You can parody or sample content within the bounds of the fair use doctrine – including jumping on the latest TikTok trend – without violating copyright law. But do not post work that is substantially similar to another creator’s work.

Similarly, do not use images, video, or music downloaded from the internet without first acquiring rights to the work or ensuring that it is in the public domain or free to use.

A Note about Social Media Platforms’ Terms of Use: Before jumping into TikTok, YouTube, X, Facebook, and others, be aware that you're agreeing to their terms of service. This often means you are granting the platform and its users a non-exclusive license to your content. In simpler terms, they can use, copy, adapt, and share what you post.

This does not mean your work can be used without attribution, or that you can use others’ work without attribution.

The social media attorneys at Hendershot Cowart P.C. can advise you on how best to protect your creative work on social media.

Questions About Social Media Compliance for the Legal Industry?

Do not let compliance concerns keep you from leveraging social media to develop business and build your firm’s or your personal brand.

If you are ready to discuss your growing social media presence with a fellow attorney whose focus is social media law and compliance, contact the social media law teamat Hendershot Cowart P.C. Our team of attorneys routinely advise influencers and organizations on social media compliance, social media policy, FTC compliance, entity formation, influencer agreements, intellectual property protection, and defense against infringement claims.

We also address some frequently asked questions below.

Call (713) 909-7323 or contact our team online for a consultation on your social media presence and online compliance.

Do I Need To File My LinkedIn Profile With The Texas Bar?

Probably not. Here’s what Gene Major said in a 2010 article on professional ethics and social media: “Attorneys can include their true and factual educational background in their social media profiles without triggering a filing requirement.”

He points to language in authoritative Comment 8 to Rule 7.02, which states that “this Rule does not prohibit communication of information concerning a lawyer’s name or firm name, address and telephone numbers; the basis on which the lawyer’s fee is determined, including prices for specific services and payment and credit arrangements; names of references and with their consent, names of clients regularly represented; and other truthful information that might invite the attention of those seeking legal assistance.”

Can I Talk About My Cases On Social Media?

Before sharing information about a matter publicly, discuss it with your client and ensure you have their permission to avoid violating confidentiality. Many court cases are in the public record, but it is still good idea to run the content past your client before adding your own commentary.

Generally, do not comment on active matters unless it is part of your legal strategy to avoid accidental violations of professional standards or influencing the outcome of the case.

What are the Potential Consequences of Non-Compliance with State Bar Rules on Social Media?

Lawyers who violate state bar rules for professional conduct, advertising, or client solicitation can face the following consequences:

• Disciplinary action by your state bar association, including reprimands, fines, suspension, or disbarment for severe violations.
• You could get fired by either your law firm, your employer… or your client!
• You could negatively influence relevant matters/cases. One case of social media misconduct resulted in a mistrial!
• Damage to your reputation, your firm’s, and the law profession’s reputation.

When Did Attorneys Start Advertising?

In 1977, the Supreme Court ruled in Bates v. State Bar of Arizona that lawyer advertising was protected commercial speech under the First Amendment, and that the state of Arizona could not prohibit it. That decision lifted restrictions on lawyers advertising their services.

The court did find that attorney advertising can be regulated to protect the public. So, lawyers gained the right to advertise, but the advertising itself needs to follow certain guidelines set by individual states' bar associations.

How Does the ABA Define Social Media?

The American Bar Association (ABA) doesn't provide a single, formal definition of social media. However, ABA articles and discussions address specific platforms like Facebook, LinkedIn, Twitter, and YouTube.

Based on the ABA's approach, we can interpret the term “social media” to include online platforms that enable lawyers to connect, share information, and engage with a broader audience, such as:

• LinkedIn, Facebook, Instagram, Threads, and X (formerly Twitter)
• Video-based services like YouTube and TikTok
• Messaging apps like Snapchat and WhatsApp
• Business review sites like Yelp and Google