I’ve been using social media heavily for years.  Blogs, Facebook, Twitter, Linkedin, etc. They have been an integral part of the marketing strategy for KLF Legal, my Intellectual Property and Entertainment Law practice, since the beginning.

Therefore, I’ve been particularly keen to see the Indiana Supreme Court’s new advertising rules, in the works since 2006 and previously unchanged for most of my lifetime.  The prior rules addressed a pre-internet, pre-social media legal industry. The rules were strained but workable, yet increasingly irrelevant. Indiana lawyers have been operating in a gray area for years with very little guidance from above. I’ve spoken to several Disciplinary Commission members at seminars and events about appropriate guidelines for attorneys using social media but all were equally in the dark.

Unfortunately, the new rules still do not specifically address blogs or social media. Sigh. We may wait yet another generation before we finally get some guidance on that front. However, there are some revisions in the new rules that I believe could adversely impact an Indiana attorney’s use of social media (or, more specifically, his ability to practice law if he uses social media incorrectly).

Here’s the good news…the overriding theme of the new rules is “No matter the advertising channel, lawyers should tell the truth.” I’m down with that. In fact, I think everyone should tell the truth. Regardless, it’s a fine way to start a rule revision:

Rule: 7.1.  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.

The rules turn quickly downhill after 7.1. To start, it looks like I will be modifying the print ad that I’ve been running the last few months in Nuvo and Urban Times. Under the working assumption that my ideal prospective clients can and will find and research my pertinent info online, I’ve preferred to use a clean, simple design, listing only the website address and social media icons:Under the new revisions, it seems I’ll have to clutter that ad with my name and office address. No big deal for me other than requiring an ad redesign, but I’m curious to see how lawyers with a virtual practice (i.e. no office address) will maneuver the following requirement. If you’re virtual, is the web your office, and thus your web address the office address?

Rule 7.2(c).  Any communication subject to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. The lawyer or law firm responsible for the content of any communication subject to this rule shall keep a copy or recording of each such communication for six years after its dissemination.

I can’t tell whether the following rule is taking a swipe at services like Skype and instant messaging or just capitalism in general:

Rule 7.3.  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…

No doubt, my primary goal when communicating with prospective clients is to figure out how I can best help them.  But in running a business that provides legal services, how can I really say that pecuniary gain is not a significant motive? Trust me, I’d be happy to do this all for free if, oh, the grocery store, my landlord, utility companies, Federal and State governments and the Indiana Supreme Court among others stop making a priority of my pecuniary LOSS.

Rule 7.3(c).  Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter shall include the words “Advertising Material” conspicuously placed both on the face of any outside envelope and at the beginning of any written communication, and both at the beginning and ending of any recorded or electronic communication…

So do I now have to write “Advertising Material” at the beginning and ending of every blog post? Newsletter? Email? Every Facebook post? Every tweet? What about the sign hanging on the front of my office?

Here’s where the new rules really get interesting…say hello to a new Advertising Tax, payable directly to the Supreme Court Disciplinary Commission Fund:

Rule 7.3(c).  Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter shall include the words “Advertising Material” conspicuously placed both on the face of any outside envelope and at the beginning of any written communication, and both at the beginning and ending of any recorded or electronic communication…A copy of each such communication shall be filed with the Indiana Supreme Court Disciplinary Commission at or prior to its dissemination to the prospective client. A filing fee in the amount of fifty dollars ($50.00) payable to the “Supreme Court Disciplinary Commission Fund” shall accompany each such filing.

$50 per ad may be small potatoes to BigLaw, but it quickly adds up in a small firm budget. After all, the ads themselves aren’t cheap. And, as if a $50 tax for each communication weren’t enough, there are a few extra requirements:

Rule 7.3(c).  The lawyer shall retain a list containing the names and addresses, including email addresses, of all persons or entities to whom each communication has been mailed or distributed for a period of not less than one (1) year following the last date of mailing or distribution. Communications filed pursuant to this subdivision shall be open to public inspection.

I’m assuming this means my list will be Nuvo and Urban Times, not a list of all Nuvo and Urban Times readers. Actually, I’d love to have that list. I’m sure Nuvo and Urban Times would also.

Rule 7.5(a)(4)(ii).  A trade name may be used by a lawyer in private practice subject to the following requirements: the name shall include the name of a lawyer (or the name of a deceased or retired member of the firm).

KLF Legal ok or not ok?  KLF is Kenan Larry Farrell. That’s me. Has been since shortly after I was born. Legal denotes a law practice.  I really don’t know if the rulemakers considered initials when drafting this rule. Either way, I sign plenty of communications as KLF, so I’m going with it being a “name of a lawyer.” @kenanlarryfarrelllegal isn’t a great Twitter handle.

As far as I’m concerned, these rule revisions don’t cut the mustard. Lots of hard work by what I’m certain is a group of bright lawyers who unfortunately don’t really understand modern communication. The Indianapolis Bar Association‘s Solo and Small Firm Committee, of which I am currently Chairman, submitted proposed language earlier this year, none of which was utilized.

We could still use more guidance on just what is a “prospective client.” At my bar admission ceremony, we were sagely advised by a federal judge that EVERYONE is a prospective client, some right away and some not for many years. What amounts to “soliciting professional employment?” I’m constantly sharing news on intellectual property, technology and social media, my areas of interest, but I do so freely and with no expectation of remuneration. On the other hand, I know that the type of clients I want to work with will be doing due diligence in selecting an attorney and expect to see such content.

Ultimately, the question of whether information submitted by lawyers to the Internet, blogs, and social media is considered a “communication” within the meaning of the advertising rules is left unanswered.  Maybe these rules worked in a time when a lawyer placed one ad a month in a newspaper, but it’s kind of difficult to fit an attorney’s name and address, disclaimers and an actual message into a 140-character tweet. I love writing you all, but $50 per Facebook post is a little steep. Indiana lawyers, you’ll definitely want to give the new rules a read, as there are other provisions that may apply to your practice.

It’s the type of situation where you wonder, “Should I have done more?” Should I have been in the ISBA meeting rooms lobbying for a better version of the rules? Probably. If I had felt that strongly about my views, I would’ve been at the meetings arguing for them. But I had other things to do (like build a memorial library to my favorite author, start Indiana’s only official Premier League supporters club,  join a new business collective that is helping put Indy’s music scene on the national stage, and promote the amazing work of Indianapolis’ local artists).  So now I’ll find a way to operate within these rules while we wait for the update. But once the meetings start for the next revisions, you can bet I’ll be there.

Here’s a link to the new rules. Rule changes take effect Jan. 1, 2011.

Disclaimer: This blog post is NOT soliciting professional employment. This blog post is strictly for the personal enjoyment and education of the author.

-Advertising Material?-