Connecticut Statewide Grievance Committee Needs A Facebook Exception For Advertising Rules

I like to follow rules because doing so usually makes life easier. 

I especially like to follow rules that impact my livelyhood.

Every quarter, I have to register this blog with the grievance committee. I’m not happy about it but I don’t have the time or the desire to make an issue of it. Registering this blog takes 5 minutes of my time every 3 months and is a small price to pay for the privelege of attaching my name to posts about Connecticut law. In life one has to pick one’s fights and this is one that’s not worth fighting.

My real gripe lies with the Grievance Committee’s (SGC) lack of a policy on Facebook and Twitter.

In preparing for the upcoming CLE on the Basics of Blogs, Twitter, and Social Media for Lawyers, I asked the SGC for materials or guidance on the ethical requirements for attorney’s using social media. I was told in so many words that the rules haven’t caught up with Web 2.0.

What we’re left with is the SGC applying outdated Web 1.0 rules to Web 2.0 and that’s a problem, especially for attorneys who are solos or practice in small firms.

The rule is easy enough:

Connecticut Attorneys must register all communications made by a lawyer or a law firm about legal services offered by the law firm.

The exceptions are as follows:

1. An advertisement in the public media that contains only the information, in whole or in part, contained in Rule 7.2 (i) of the Rules of Professional Conduct, provided the information is not false or misleading;

2. An advertisement in a telephone directory;

3. A listing or entry in a regularly published law list;

4. An announcement card stating new or changed associations, new offices, or similar changes relating to an attorney or firm, or a tombstone professional card;

5. A communication sent only to:

(i) Existing or former clients;

(ii) Other attorneys or professionals; business organizations including trade groups; not-for-profit organizations; governmental bodies and/or

(iii) Members of a not-for-profit organization that meets the following conditions: the primary purposes of the organization do not include the rendition of legal services; the recommending, furnishing, paying for or educating persons regarding legal services is incidental and reasonably related to the primary purposes of the organization; the organization does not derive a financial benefit from the rendition of legal services by an attorney; and the person for whom the legal services are rendered, and not the organization, is recognized as the client of the attorney who is recommended, furnished, or paid for by the organization.

6. Communication that is requested by a prospective client.

7. The contents of an attorney’s website(s). Attorneys must provide the domain name(s) (URLs) of the website(s) only and must do so only on a quarterly basis.

The rules about internet advertising are clearly set up for stale websites on which lawyers boast about being a Super Lawyer, their community involvement, and their diplomas. I call these websites dinosaurs.

I have a Facebook page and have several hundred “friends.” Most of them are former classmates, co-workers, family, and friends with pretty much the sole exception being that I’m “friends” with  Red Sox pitcher Justin Masterson, who pitched well last night in leading the Red Sox to their 10th straight win and completing the sweep over the Yankees.  I digress.

My Facebook page lists my occupation and describes a little of what I do. It’s not all that different than my bio page on this site, less words but the same idea.

My profile can only be seen by people that I’m “friends” with.

Sometimes, I write about law. Again not a whole lot different that what I do on this site. Sometimes, I’ll post a link on my profile page and embed an article or blog post that catches my eye. Sometimes, I’ll update my status and it will include something law related such as “off to court” or some such useless nonsense.

It was suggested to me by the SGC that it may be best to separate my personal life from my professional life online by creating some sort of a net wall.

But that’s not right. I have rights under both the United States and Connecticut Constitutions to comment on law, my life, or whatever nonsense pops into my head.

Norm Pattis has done a wonderful job in making the case that attorney ethics rules are written for large firms and that applying them to small firms and solos places unfair constraints on those who don’t have a 150 partners.

Facebook is ground zero for this conflict. On one hand my Facebook page exists as a private way for me to keep in contact with the people in my life on the other hand it is a way for me to market myself.

The question is where to draw the line?

I rely on my friends, family, and former classmates for business. I couldn’t exist without them.  Law school classmates send me cases, family members and friends have me prepare their wills and buy and sell their homes. 

Does it benefit me if my high school classmates know where I practice and what it is that I do? Absolutely.

Lawyers in large firms spend lots of marketing time meeting with and speaking to people in whatever industry they happen to serve. For example, it makes sense for an energy lawyer to be out an about at meetings with the energy industry. 

For me Facebook works in much the same way.

I can’t think of a policy for the SGC to regulate attorneys’ Facebook pages.

Facebook allows a person to buy very targeted ads that appear on Facebook and I think it makes sense for attorney’s to have to register those ads.

Registering my page with includes lots of personal photos and information goes to far. I don’t post pictures of me with my dog in a Halloween costume on this site because they are not for public consumption. The SGC has no right to view those pictures. I do not want the SGC as my friend and it probably does not want me to be it’s friend either.

The only policy that makes any sort of sense is for Facebook pages to be exempt from registration and review the same way an advertisement in the yellow pages is exempt. It makes sense.

The only people who can see my Facebook page are people who (1) I let see it; and (2) people who choose to see it. 

The SGC shouldn’t wait around to enact such a policy either.  Failing to have a policy in place has a chilling effect on speech. I shouldn’t be left wondering if updating my status to read “busy today,  last day of the month, lots of closings” or “proud of legislature for enacting Kerrigan legislation” is a violation of my ethical duties as an attorney.

Ryan McKeen is a trial attorney at Connecticut Trial Firm, LLC in Glastonbury, Connecticut. In 2016, he was honored by the CT Personal Injury Hall of Fame for securing one of the highest settlements in the state. He is a New Leader in the Law. ABA 100. Avvo 10. 40 under 40 for Hartford Business Journal. He has been quoted in Time Magazine, the New York Times, Hartford Courant, Wall Street Journal Law Blog and the Hartford Business Journal. He focuses his practice on Connecticut Personal Injury law. He loves what he does. Contact him or 860 471 8333