If you scour every issue of the Texas Bar Journal for proposed changes to the ethics rules that govern Texas lawyers–and who doesn’t?–then you saw that the March 2020 edition included proposed changes to Texas Disciplinary Rules of Professional Conduct 7.01-7.06. These are the rules that regulate lawyer advertising, including social media. You can find background material about these changes here.

I’ve blogged about this topic (see Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media) and taught continuing legal education programs on it, so you know I was eager to check out the proposed changes. And guess what, the proposed changes are generally an improvement.

It gets even better. You can submit public comments on the proposed changes to the Committee on Disciplinary Rules and Referenda by email to CDRR@texasbar.com or by clicking here. You can also call in for a public hearing on the proposed changes on my birthday, April 7. They will even let law bloggers participate. (Thanks to the Rules and Referenda Staff Attorney, Brad Johnson, for providing this helpful info.) 

You know I’m not going to pass up a chance to give my two cents on these proposed revisions. So here’s a draft of my memo to the Committee.

Memo

To:            Texas Committee on Disciplinary Rules and Referenda

From:       Five Minute Law

Re:            Changes to Texas Disciplinary Rules of Professional Conduct 7.01-7.06

Date:         3/23/20

A. Overview

  • My focus is on application of the advertising rules to social media. I am a practicing Texas litigator who has taught CLE programs on this topic for ethics credit.
  • The overhaul of the advertising rules is a welcome change. The old rules were unwieldy and difficult to apply to current reality, especially social media.
  • A literal application of the current rules could mean that a lawyer has to file every social media post with the Advertising Review Committee.
  • In addition, the current rules could be read to require all lawyers to file their LinkedIn profiles (and other “landing page” profiles). Hardly any Texas lawyer does this.
  • The new rules offer some guidance by now defining “advertisement.” The definition has three elements: (1) communication to the public, (2) offers or promotes legal services, and (3) substantially motivated by pecuniary gain.
  • The new definition of “advertisement” is helpful, but could be improved.
  • The Advertising Review Committee’s current Interpretive Comment 17 provides helpful guidance that “[b]logs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department.”
  • Consistent with Interpretive Comment 17, the new definition of “advertisement” should include a carve-out or safe harbor to confirm that educational communications are not “advertisements.”
  • The new Rule 7.05 expands the exemptions from the filing requirement to include “a communication on a professional social media website to the extent that it contains only resume-type information.” Again, this is an improvement, but it could be better.
  • It is unclear whether the typical lawyer LinkedIn profile—which often includes endorsements and recommendations—would fall under this exemption. This should be clarified.

B. My Perspective

My perspective on the advertising rules and their application to social media is based on several things:

  • I have been a practicing Texas litigator for over 20 years.
  • My current practice focuses on representing both employers and employees in disputes involving non-competes, trade secrets, and other departing employee issue. There is no board certification for this practice area.
  • I am a frequent user of social media for both professional networking and sharing educational content with other lawyers and the public.
  • I publish a weekly blog, Five Minute Law, which focuses on litigation-related topics for both lawyers and non-lawyers.
  • I have written about the ethics of lawyer use of social media in Texas at my blog and have presented the topic multiple times at continuing legal education programs.

C. Problems with the Current Rules

The current Texas advertising rules were written specifically to regulate plaintiff’s personal injury lawyers, but they apply to everybody.

So, for example, Rule 7.02(a)(2) says a communication about past results is false and misleading unless:

(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,

(ii) the amount involved was actually received by the client,

(iii) the reference is accompanied by adequate information regarding the nature of the case or matter, and the damages or injuries sustained by the client, and

(iv) if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well.

The problems with this rule are obvious. What if you weren’t lead counsel? What if you’re a defense lawyer who got a take-nothing verdict, so no amount was “actually received by the client”? What if you’re a transactional lawyer and there was no litigation, settlement, or verdict at all?

Fortunately, the Advertising Review Committee of the State Bar recognized the problem and published Interpretive Comment 26. It says, essentially, comply with the parts of the rule that apply to your situation, and don’t worry about the rest.

Even aside from these specific flaws, the way the current rules define false or misleading communications by reference to specific instances is problematic. I’ve always thought it would make more sense to have one general rule, i.e. don’t make false or misleading statements. The new proposed Rule 7.01(a) essentially does that. This is a definite improvement.

Another problem with the current rules is that, generally, a lawyer can’t say “I specialize” or “I’m a specialist”—even if it’s true—if the lawyer is not board certified in that practice area.

The reality today is that most lawyers specialize in a particular practice area but are not board certified. And what do you do if you specialize in, for example, non-compete and trade secret litigation? There’s no board certification for that.

The answer is that you just use a different word. Rather than say “specialize,” you say that your practice “focuses” or “concentrates” on a particular area of law.

Obviously, this puts form over substance. A limitation so easily avoided seems silly.

The new Rule 7.02 seems to fix this. It allows a lawyer to say the lawyer “practices in particular fields of law” and removes the express prohibition on a non-certified lawyer saying the lawyer is a “specialist.” It even appears that under the new rule a non-certified lawyer could say “specialize” or “specialist,” provided that statement is not false or misleading.

That is what the rule should be. The only constituencies that might have a reason to oppose this are board-certified lawyers and the Texas Board of Legal Specialization.

So I applaud this and the other proposed improvements to the “false and misleading” rules. But that still leaves the problem of social media.

D. Problems Applying the Current Rules to Social Media

Obviously, the current advertising ethics rules were not written with social media in mind, and applying them to social media is difficult.

The fundamental problem is that lawyers do not usually think of their social media profiles or posts as advertising, but these communications could be considered advertising under a literal application of the current rules. That would mean for every profile or post, the lawyer would need to fill out an application, pay a fee, and file a copy with the Advertising Review Committee of the State Bar of Texas.

Take LinkedIn. It is by far the most popular platform for professional networking for lawyers. Almost every Texas lawyer has a LinkedIn profile.

The profile includes an “About” section that usually contains a self-promoting description of the lawyer’s practice written by the lawyer, an “Experience” section showing the firms the lawyer has worked for, and an “Education” section with the lawyer’s degrees. These sections are followed by the “Skills and Endorsements” section and the “Recommendations” section (more about those later).

In short, the point of the profile is to promote the lawyer’s experience and qualifications as a lawyer. And in the vast majority of cases, the profile is set to be viewable by the public. So is it an “advertisement” that must be filed?

It sure sounds like advertising, and the Advertising Review Committee has said it is. Interpretive Comment 17(C) says: “Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements.”

It therefore appears that, generally, Texas lawyers must file their LinkedIn profiles.

Of course, hardly any lawyers do this. I have plenty of anecdotal evidence from raising this question at multiple CLE presentations. It appears that thousands of Texas lawyers are currently breaking the rules by not filing their LinkedIn profiles (arguably).

This is an untenable situation.

One possible solution is for a lawyer to limit the material in the LinkedIn profile to matters that are exempt from the filing requirement under current Rule 7.07(e). The exemption includes some basic resume-type information, including “the particular areas of law in which the lawyer or firm practices.”

That helps, but it does not entirely solve the problem. Remember Endorsements and Recommendations? They expressly promote the qualifications and experience of the lawyer, and they do not seem to fall under any existing exemption. So, even a lawyer who tries to limit her profile to material that falls under an exemption is still going to have a hard time achieving strict compliance.

And the problem is not limited to profiles. There is also the problem of social media posts.

E. The Problem with Social Media Posts

Let’s take a typical LinkedIn post by a lawyer. The lawyer shares an article that recognizes the lawyer’s firm as a top firm in a particular practice area, adding the comment “Congrats to my wonderful colleagues!” If the lawyer published this in a magazine, we would all agree it’s an advertisement. But it is unlikely the lawyer will consider the social media post an advertisement, and even less likely the lawyer will file it with the Advertising Review Committee.

I suppose the Bar could take a hard line and strictly enforce the filing requirement. But the likely result would not be lawyers filing their LinkedIn profiles and posts as advertisements, but lawyers getting off LinkedIn. That would not benefit the profession or the public.

The problem is even greater on Twitter. A lawyer who is active on Twitter may share dozens of tweets, retweets, and responses to tweets in a day. But we don’t want to make  the lawyer evaluate each tweet to determine if it’s an “advertisement,” file a copy of each one that crosses the line into advertising, and pay multiple fees each day.

F. The “Educational or Informational” Solution

Interpretive Comment 17 offers a potential solution by drawing a line between “educational or informational” content and advertising: “Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department.”

So, a lawyer who wants to post content on social media can avoid violating the filing rule by keeping the content “educational or informational” rather than self-promotional.

For example, a tweet that comments on a recent Texas Supreme Court decision would not be advertising, because it’s educational or informational, but a tweet that says “my firm just won a huge case for our client X at the Texas Supreme Court” might be advertising.

It’s not a perfect solution, but it helps.

G. The Proposed New Definition of “Advertisement”

The new Rule 7.01 improves on the situation by defining “advertisement.” The proposed definition is “a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.”

The last part of the definition is there to distinguish an advertisement from a “solicitation.” I will focus on the first part.

The proposed definition has three elements:

(1) communication to the public

(2) offers or promotes legal services

(3) substantially motivated by pecuniary gain

One of these things is not like the other. Elements 1 and 2 are objective. Element 3 is subjective. In other words, you can evaluate elements 1 and 2 solely by looking at the communication on its face. Element 3, in contrast, requires looking into the mind of the lawyer who made the communication.

It would be preferable to make the definition entirely objective. The focus should be on the substance of the communication, not its motivation.

The problem with the subjective element, in a nutshell, is that there is almost always some pecuniary motivation to content a lawyer shares on social media. Even when a lawyer shares a post that is entirely educational, the lawyer is probably hoping that the post will help to generate interest from a potential client or referral source.

I’ll use myself as an example. My last three blog posts covered application of force majeure clauses, drafting considerations for Texas non-competes, and a recent Texas Supreme Court case on whether an exchange of emails established an enforceable purchase agreement.

Each of these posts was primarily “educational” in its content, for both lawyers and members of the public. And at the risk of flattering myself, I would also say the content was helpful to understanding the topics.

Was my motivation purely educational? Of course not.

Yes, I enjoy educating people, but my blog posts are also part of an overall networking and business development strategy. Obviously, I am hoping that these posts will help generate referrals by other lawyers or inquiries by potential clients. You might call that a “pecuniary” motivation.

H. Applying the New Definition of “Advertisement”

So would my blog posts be “advertisements” under the new proposed definition?

Probably not. That’s because my posts do not “offer or promote legal services,” at least not expressly. Ignoring the advice of marketing experts, I never add a “call to action” to my posts, e.g. “if you need help with drafting a force majeure clause or a non-compete, please contact me.” I avoid the call to action because it sounds too “salesy” for my taste, but also because I don’t want to turn my educational blog post into an advertisement that I’m supposed to file.

Plus, I could make a case that the post was only partly, not “substantially,” motivated by pecuniary gain.

The problem is the “probably.” It would be better if the new definition would provide more certainty that an educational post is not an advertisement, following Interpretive Comment 17. The “motivated by pecuniary gain” element adds some uncertainty.

To mitigate this problem I propose the following modification:

An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which and that offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters. A communication, including an article, blog post, or social media post, that is primarily educational or informational and does not expressly promote the experience or qualifications of the lawyer or solicit potential clients is not a communication that “offers or promotes legal services.”

This continues existing policy (under Interpretive Comment 17) but provides more certainty.

I. The New Exemption for Resume-Type Information

The new Rule 7.05 expands the list of things that are exempt from the filing requirement. It includes a new exemption for “resume-type information” on social media:

(g) a communication on a professional social media website to the extent that it contains only resume-type information.

This is a welcome improvement. It potentially solves the problem with LinkedIn profiles—and other social media profiles—discussed above. Lawyers should be free to post resume-like information about their experience and qualifications on their social media profiles without worrying about whether they are required to file the profiles as advertisements.

The problem with the proposed exemption is that the term “resume-type information” is vague. In particular, it is not clear whether resume-type information includes endorsements and recommendations, and therefore it is not clear whether the exemption solves the LinkedIn profile problem.

To address this issue with more certainty, I propose the following revision:

(g) a communication on a professional social media website to the extent that it contains only resume-type information; “resume-type information” includes third-party endorsements and recommendations and other information about experience and qualifications customarily provided on social media profiles, provided the information is not false or misleading under Rule 7.01;

Again, lawyers are already sharing this information. We need a rule that accommodates this reality. A situation where thousands of lawyers are potentially violating the rules by not filing their profiles does not increase public confidence in the legal profession.

J. Conclusion: Lawyer Use of Social Media Should be Encouraged

The assumption that implicitly underlies my comments is that the rules should encourage lawyers to engage with other lawyers and the public on social media. There is a real benefit to both lawyers and non-lawyers when lawyers freely share information on social media. Any rule that would have a chilling effect on lawyer engagement on social media should be avoided.

Granted, there is a danger to the public from unscrupulous lawyers using social media, just like there was a potential danger when we allowed lawyers to write articles in magazines, place ads in the yellow pages, record TV and radio commercials, and put up billboards. But the general prohibition on false or misleading communications can do most of the work. Protecting the public does not require antiquated and byzantine rules that were never intended for social media.

I hope my comments are helpful to the Committee’s admirable effort to update and streamline the Texas advertising rules for the social media era.

So what do you think of my draft public comment? I’d love to hear your feedback. And if you agree with my suggested improvements, please email the Committee on Disciplinary Rules and Referenda at CDRR@texasbar.com and tell them “I agree with Zach Wolfe’s proposed revisions published at Five Minute Law.”

_______________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

8 thoughts on “Influential Blogger Recommends Tweaking New Texas Ethics Rules

  1. Very good discussion, Five.

    I believe that the rules should say “don’t make false or misleading statements.” Everything else is superfluous.

    And, another thing, has the U.S. Supreme Court ever upheld a government requirement that you need to file your speech with them? I don’t think so.

    Robert A. Ray

    Attorney at Law

    TexasAntiSlapp.Com

    Tel: 972-505-3300 | Fax: 855-660-5700

    The use of the phone, internet or email for

    Communications with this firm or any

    individual member of this firm does not

    establish an attorney-client relationship.

    Like

    1. Thanks for reading!

      I’m really no expert on the 1st Amendment issues raised, but I tend to think the courts are going give state bars pretty wide latitude to regulate lawyer advertising with rules that have some rational basis.

      Like

Leave a Reply to santirelaw Cancel reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s