In today’s marketplace, having a strong social media presence is essential. For example, in addition to a firm website and blog, our firm has a presence on LinkedIn, Google +, Twitter, and Facebook. While an on-line presence can translate into positive business development, it also means more ethical considerations. Two trends in online marketing, which seem to be particularly problematic for attorneys, recently caught my attention: ghost blogging and astroturfing.
Ghost Blogging. Ghost blogs are created by writers who are hired to pen content for their client’s blog anonymously. Although many different professions and markets utilize ghost bloggers in an effort to increase their credibility and market development, lawyers, because of our advertising rules, should tread carefully. Although the Rules do not specifically prohibit ghost blogging, the Rules do prohibit false and misleading and deceptive communications to the public about our legal services. Rule 7.1. The Ethics Committee has opined that similar conduct is misleading and therefore prohibited if, at the heart of it, you are hiring someone to pretend to be you, or are simply buying legal content to publish under your name. 2008 Formal Ethics Opinion 14, Opinion #6. Less clear is what level of collaboration on a blog would be permissible in the eyes of the State Bar or under what circumstances the inclusion of an appropriate disclaimer may be enough.
Astroturfing. Astroturfing is defined as “the act of trying to boost one’s image online with fake comments, paid-for reviews, made-up claims and testimonials.” Although it may be tempting to have an employee post a positive or flattering review or testimonial of your legal services, and there are many companies who will do this for hire, you should never post false reviews. For example, Yelp, an online business review site, sued a San Diego law firm for allegedly causing false postings regarding their legal services to be posted to the Yelp site. Yelp alleged the positive reviews were actually posted by employees of the firm. And in New York, following “Operation Clean Turf,” the Attorney General announced 19 companies were heavily fined for writing fake online reviews to promote products and services where the companies were hiring employees to post positive online reviews for their clients.
Although I have not yet seen any astroturfing cases with the N.C. State Bar, there is no doubt this practice is unethical for attorneys (Rules 7.1 and 8.4(c)) and could lead to a grievance. As Gyi Tsakalakis in his Lawyerist article states: “Many of the rules governing what attorneys can and can’t do are vague, confusing and unduly restrictive. But this one’s pretty reasonable and clear: Don’t mislead potential clients with false testimonials, endorsements, reviews, etc.”
One last point: Some lawyers may want to leave their social media presence in the hands of others for reasons including a lack of time or expertise. However, lawyers still have an ethical duty to supervise the non-attorneys who provide content on their social media to ensure the content complies with the Rules. Regardless of whether an attorney approved of the social media message related to the legal services he or she is providing, the Bar can ultimately hold the attorney responsible if there is a violation of the Rules.