Forms and Pitfalls of Modern Advertising
Overview
With the advent of the internet age, advertising has expanded beyond traditional forms of media and print. The internet has exploded as the favored medium of communication across all aspects of life and law is no exception.1 This explosion of new technology has shattered traditional concepts of advertising and raised new ethical issues to be aware of when employing these techniques. Modern platforms for advertising include firm websites, podcasts, blogs, YouTube, and social media such as Instagram, TikTok, LinkedIn, Facebook, Twitter and internet chatrooms like Reddit.
According to the ABA Tech Report 2021, 86% of surveyed law firms had a social media presence2 and according to a Clio survey, 35% of lawyers who use social media and 42% of small firms have gained clients. Social media can improve visibility and relatability, target specific communities, and track the effectiveness of ad campaigns. These platforms may be used to promote firms or specific lawyers to gain attention and spread information. On the other hand, as lawyers use social media for both personal and professional purposes, the line between sharing information and advertising has become blurrier.3
Although many may not agree that using these platforms amounts to advertisement, the term advertising may be construed broadly. For example, the Law Society of British Columbia has included a definition for ‘marketing activity’ in their Code of Conduct:
“marketing activity” includes any publication or communication in the nature of an advertisement, promotional activity or material, letterhead, business card, listing in a directory, a public appearance or any other means by which professional legal services are promoted or clients are solicited.
The Law Society of Ontario has defined “marketing” to include advertisements and other similar communications in various media as well as firm names (including trade names), letterhead, business cards and logos.
These definitions are broad and can easily be extended to the forms of modern advertising reviewed below and others. Canadian law societies have consistently demonstrated their intent to apply a broad definition to advertising and interpret their codes of conduct as applying to any form of promotional activity. As a result, we highlight ethical issues and common pitfalls to be aware of when using these modern forms of advertising.
Additional ethical concerns of modern advertising
Before reviewing specific social media platforms and their relevant risks, it is worth noting several additional rules that lawyers should be aware of and careful not to contravene when advertising through social media.
Confidentiality
Use of social media or other less traditional forms of advertising may result in inadvertent disclosure of privileged or confidential information including the identity of current, former or prospective clients. Regardless of which platform a lawyer uses, either personally or professionally, they should take care not to inadvertently divulge privileged or confidential information. A lawyer offering advice to a person on a social media platform that can be seen by the general public may be in breach of this duty.
Privacy
Another ethical issue arising out of social media advertising is privacy and the use of modern advertising tactics through big data. Today, all aspects of life are increasingly intertwined with the internet and online profiles.4 People share their photos online, declare their relationship status, seek personal advice, and follow and disseminate topics of personal interest. Some people even share their location. Access to all this information and more allows advertising to target specific groups of people based on their expressed or observed interests and the data collected from them. This technique is called microtargeting.
For example, a divorce lawyer may target social media users who post about relationship issues or who change their relationship status. The lawyer could go a step further and track people who are travelling on holidays to target potential clients going through stressful experiences. Advertising strategies that stray to microtargeting may cross the line into solicitation as they target specific groups or people and offer legal assistance for a specific matter.
In a 1995 ethics decision, the Law Society of Saskatchewan concluded that sending letters offering services to persons known to be facing foreclosure amounted to direct solicitation and was in bad taste.5 In a 2013 decision, the same committee observed that advertisements and marketing strategies that target individuals in a ‘weakened state’ are unethical.6
Networking and Inadvertent Relationships
Another pervasive issue of online and social media advertising is the risk of creating inadvertent relationships. Networking is a great way to connect with a community or group of people and is extremely convenient through social media. As discussed in the Retainers and Fees Toolkit, however, lawyers must exercise caution not to inadvertently enter a lawyer-client relationship through what may feel like casual conversations about a friend or acquaintance’s legal issues.
This risk exists whenever a lawyer connects with someone who may be casually seeking legal advice. Online posts, tweets, video recordings, responses to legal questions or suggestions to courses of action may all be construed as consultations that result in lawyer-client relationships or create potential conflicts of interest. While this is not a new ethical issue, social media platforms significantly increase the opportunity, and consequently the risk, that lawyers will inadvertently cross that line.
For more information on what determines whether a lawyer-client relationship exists, see Retainers and Fees Toolkit > Communicating with Prospective Client.
Viral Content and Jurisdiction
“Going viral” is somewhat of a badge of honour and refers to the level of popularity a specific post or video has garnered. In essence, viral content capitalizes on an online version of word-of-mouth marketing7 and reaches millions of people in a relatively short time. While going viral seems like an exciting prospect for many advertisers, lawyers must remember that once they post something online, they no longer have control over who sees it, or who uses it. This phenomenon may result in a lawyer giving advice in a jurisdiction where they have no authority to practice law, or in consumers taking advice that was not given in their specific situation.
Types of Modern Advertising
Websites
The primary point of information for many firms is their website. Legal websites are an easy, effective and cost-efficient way to advertise, enhance a firm’s or lawyer’s image, disseminate information and maintain 24-hour accessibility to clients.8 While content will vary from firm to firm, websites have become a primary source of information for a wide range of legal information including newsletters, legal services, practitioner bios and practice areas, press releases, case summaries and blogs.
Whatever information is included in a website, lawyers must ensure information does not contravene the advertising standards or other provisions in their code of conduct.
For example, many law firm websites include testimonials or summaries of past cases, including client names. The details of client identities and retainer agreements are confidential and before this information is used in advertising, client consent must be obtained. Even if the client’s identity is not explicitly divulged, the shared information in the summarized case may divulge confidential and private information.8 Client consent is vital even when a lawyer is counsel of record or believes their involvement in a case is publicly known.
Additional factors lawyers may wish to consider for their website content:
- Does my bio use comparatives, superlatives or claim expertise?
- Does my bio refer to third party rankings that do not have fair and unbiased assessment processes?
- Does a blog post I wrote give legal advice?
- Do my posted case summaries mislead the public or diminish the administration of justice?
- Do reports of my successes explain that success will depend on the facts of each individual matter?
- If testimonials are permitted in my jurisdiction, do they mislead the public?
- Do these testimonials breach the duty of confidentiality?
- Did I incentivize previous clients to leave positive testimonials?
Learn More:
- Elaine Craig, “Examining the Websites of Canada’s Top sex Crime Lawyers’: The Ethical Parameters of Online Commercial Expression by the Criminal Defence Bar” (2015) 48(2) UBC Law Rev 257
- Vanessa S. Browne-Barbour, “Lawyer and Law Firm Web Pages as Advertising: Proposed Guidelines” (2002) 28:2 Rutgers Computer & Tech LJ 275.
Modern video image and video platforms such as TikTok and Instagram offer opportunities to significantly expand an intended audience. These platforms can help lawyers convey simplified complex legal concepts, demonstrate knowledge, engage with prospective clients, and appear relatable and approachable.9 These platforms can attract attention and gain followers who may subsequently approach a lawyer with their legal needs.
TikTok and Instagram are powerful, far-reaching platforms. When using TikTok as an advertising platform, do so ethically and professionally with content that cannot be construed as misleading. The effectiveness of these platforms is often directly related to the obtained number of followers, and lawyers must not resort to inappropriate or unprofessional antics to increase those numbers.
A lawyer who uses these platforms personally should take care not to cross ethical boundaries relating to the practice of law. Code of conduct breaches may also occur if a lawyer fails to uphold the duty of confidentiality. Whether or not there is an intent to advertise, conduct may be deemed self promotion and subject to the rules in the law society’s code of conduct.
Like websites, content on these platforms can include pictures, videos, snippets of legal wisdom, lawyer biographies or client testimonials. Whatever is posted must follow jurisdictional rules.
If followers reach out for legal advice through these platforms, a lawyer must not inadvertently create a client-lawyer relationship or conflict of interest, or offer advice to someone outside of the legal jurisdiction or in instances where unqualified to do so.
Learn More:
The Model Code also applies to content on Facebook and LinkedIn. In 2017, the Law Society of British Columbia concluded that rude Facebook comments about another lawyer amounted to marketing activities.10
As with Instagram and TikTok, lawyers who use these platforms for personal reasons should take care not to inadvertently do anything that could be construed as self promotion or advertising without ensuring that they are not breaching the rules set out in their code of conduct rules.
Learn More:
As the internet has become a common platform for discussion and socialization, lawyers who use platforms like Twitter and Reddit need to take special care not to enter into inadvertent lawyer-client relationships or create conflicts of interest.
The ethical repercussions of these conversations can be significant. These discussion platforms are not restricted by country or jurisdiction. As a result, a lawyer who offers advice there may not be qualified to opine on the issue in question. Therefore, responding to a query for legal advice, and holding yourself out as qualified to respond as a lawyer may be misleading.
Learn More:
Isabella M. Leavitt, “Attorney Advertising in the Age of Reddit: Drafting Ethical Responses to Prospective Clients in Online Non-Legal Forums,” Georgetown Journal of Legal Ethics 29, no. 4 (Fall 2016): 1111-1130
Summary
Websites and social media offer excellent opportunities for lawyers to expand their reputation, share information with the public, and reach more people who are seeking help. These platforms are also fraught with potential ethical issues. Some steps a lawyer may wish to consider taking to avoid these pitfalls include:11
- using a disclaimer when sharing any kind of legal advice to ensure consumers do not believe the information is intended to create a relationship or constitute legal advice;
- remembering that after something is said, it is no longer controlled and posts or comments or videos may be read by millions of people;
- identifying yourself in online communications including name, contact information, and the authorized jurisdiction of legal practice.
By taking these steps, a lawyer can ensure their legal advertisements are not misleading and cannot be misconstrued by the people they reach.
Endnotes
1 Daniel Backer, “Choice of Law in Online Legal Ethics: Changing a Vague Standard for Attorney Advertising on the Internet” (70:6 Fordham L Rev 2002) at 2409.
3 William I. Weston, “The Ethics of Advertising and Other Issues Related to Law Firm Web Sites” (2005) 2005 Prof. Law. Symp. Issues 69.
4 Seth Katsuya Endo, “Ad Tech & The Future of Legal Ethics” (73:1 Alabama Law Review 107 (2021)at 119.
8 Vanessa S. Browne-Barbour, Lawyer and Law Firm Web Pages as Advertising: Proposed Guideline) (28:2 Rutgers Computer & Tech LJ (2002) at 275.
11 Law Society of British Columbia Benchers’ Bulletin (Summer 2017), p 20 online.
12 Monica Befa “The Ethics of ‘The Tweeting Lawyer’: Powerful Platform or Risky Undertaking?” (April 19, 2016) Slaw online.