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Accidental Advertising - and its Consequences

Let’s imagine that you post to Facebook or Twitter. The posts are visible to your “friends” or “followers”, but not to the general public. Let’s also imagine that you recently won a case and want to brag about it via social media. Here are some possible postings:

“Case finally over. Unanimous verdict. Celebrating tonight.”

“Another great victory in court today. My client is delighted. Who wants to be next?”

“Won a million dollar verdict. Tell your friends to check out my website.”

“Won another personal injury case. Call me for a free consultation.”

Given the spontaneity of posting to social media, none of these statements seem out of line - but there may be consequences under the Illinois Rules of Professional Conduct.

A recent opinion of The State Bar of California Standing Committee on Professional Responsibility and Conduct (Formal Opinion No. 2012-186) considered whether these statements constituted advertising under California law. (California law differs from Illinois law on a number of points, but their analysis of “advertising” is appropriate.)

The Committee held that while the first statement did not constitute advertising, the other three did. The same conclusions would probably result under the Illinois Rule of Professional Conduct 7.2 Comment 1, which states “[a]dvertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.”

While advertising is permitted under IRPC 7.2, it is subject to a number of restrictions. Assuming that you stumble across the line and engage in inadvertent advertising, what are your responsibilities under the Illinois Rules?

The first responsibility is to be truthful. IRPC 7.1 states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment 3 to Rule 7.1 states that the “inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.” While the provisions of Rule 7.1 may be appropriate to well-drafted advertising, they require careful attention that might not be practical in a quick entry in social media.

It is also easy to breach your obligation of confidentiality. Illinois Rule 1.6 states that, subject to certain exceptions, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent,… .“ Talking about a case publicly can easily lead to disclosing confidential information.

Another concern regarding unintended advertising is the prohibition against direct contact with prospective clients under Illinois Rule 7.3, which states that subject to specified exceptions:
A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain . . . .

An exception to this prohibition is set out in Rule 7.3(c) which states:
Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, . . .

Of course, it eliminates some of the spontaneity of making entries in social media if you have to put “Advertising Material” at the beginning and end of your entries.

In fact, spontaneity is the major problem with social media. It is very easy to make statements like those considered by The State Bar of California that cross the line into legal advertising - and once the line is crossed, the Rules of Professional Conduct apply. The difficulty is that whether or not a statement is advertising is a matter of judgment – and judgment is often applied in retrospect.