Early last decade, Kevin Ryan and I traveled around Vermont doing a presentation on legal ethics & social media. Here’s a hypo we used:
- Lawyer creates Facebook page for Firm. Lawyer offers $25 to the first 25 friends who “like” or “share” the Firm’s page. Discuss.
Now, given that it was early last decade, many in our audiences wondered why we were discussing something that would never happen in real life.
Alas . . . Kev, we told ’em so!
Late last decade, the North Carolina State Bar adopted 2019 Formal Ethics Opinion 6: Offering Incentive To Engage With Law Practice’s Social Networking Sites.
(I didn’t notice the opinion until Sunday. That’s when the Professional Responsibility Blog linked to the Louisiana Legal Ethics Blog’s post Top Ten Legal Ethics Developments in 2019. Thank you Professors Bernabe & Ciolino!)
Anyhow, the NC opinion is straightforward. A lawyer asked whether he could offer entries into a prize raffle to anyone who connected with his firm’s social media platforms. The NC State Bar answered:
- “No. If a social media platform will broadcast or display a user’s connection or interaction with Lawyer’s law practice social media account to other users of the platform, Lawyer may not offer prize chances in exchange for activity on or with his social media accounts.”
Per the opinion, the incentive program would violate Rules 7.2(b) and 7.1(a).
Rule 7.2(b) prohibits a lawyer from giving anything of value to someone to recommend the lawyer’s services. Per the NC Opinion, free entry into a prize raffle is something of value, and a public “follow” or “like” is a recommendation. By rule, the former cannot be given in exchange for the latter.
Rule 7.1(a) prohibits a lawyer from making a false or misleading communication about the lawyer’s services. On this issue, the opinion says:
- “The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange for recommending services is to ensure that recommendations for a lawyer’s services are based upon actual experiences or legitimate opinions of the lawyer’s service, rather than financial incentive. The displayed “like” of a law practice may indicate some prior experience with the law practice or the personnel associated with the practice upon which the user’s “liking” of the practice is based. Similarly, the credibility attributed to a particular social media account could be influenced by the number of account followers or subscribers. When the “like” or follow of a law practice’s social media account is based upon the user’s interest in a prize giveaway, the incentivized “like,” follow, or other interaction received by Lawyer and displayed on social media is misleading in violation of Rule 7.1(a).”
Vermont’s versions of Rule 7.1(a) and 7.2(b) are identical to North Carolina’s.
I don’t know how I feel about the opinion.
On one hand, I get it: the lawyer’s plan violates the rules as they are written.
On the other, like many of you, I use “likes” (and tools like Yelp & Amazon reviews) ALL THE TIME when trying to find a product or service provider. Am I influenced by “follows,” “likes,” and positive reviews? Yes.
But I’m also aware that many of us “like” pages for no other reason than someone we know asked us to “like” their page. Or maybe even to become eligible to get something for free. That is, I’m not under any illusion that all my friends who like another friend’s business have hired that friend and received satisfactory service.
In my mind, the important question isn’t whether someone hired a service provider based on the provider’s likes or endorsements. No, the important question is, once hired, did the client receive competent service at a reasonable price?
There you have it. As always, be careful out there.