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  • December 18, 2019

    Ethical Dilemma: Are Social Media Incentives Allowed?

    Is it OK, while building your firm's presence on social media, to offer rewards to those who "like" the page and provide a good recommendation?

    Timothy J. Pierce

    facebook likes

    Dec. 18, 2019 – Your firm’s social media presence is an important part of its visibility to potential clients. Is it permissible to incentivize “likes” to your firm’s social media page?

    Question

    Our law firm recently hired some marketing professionals to help increase our social media presence.

    They suggest that we incentivize people to “like” our firm’s social media page by entering anyone who “likes” our page into a drawing for a valuable prize. Anyone, including current and former clients of the firm, would be eligible to enter.

    I can’t put my finger on it, but something makes me uneasy about this idea. Is such a contest permissible?

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors Timothy Pierce or Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.

    Answer

    This is the question that was considered in the recent North Carolina 2019 Formal Ethics 6.1

    Tim PierceTim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    The relevant rule is SCR 20:7.2(b), which prohibits a lawyer from giving anything of value to someone in return for recommending the lawyer’s services. ABA Comment [5] to the rule explains “A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities.”

    In considering whether the proposed drawing would involve giving something of value in return for a recommendation, the North Carolina opinion states:

    Without further context, other users could interpret an individual “liking” a law practice as a personal endorsement and recommendation of that law practice. If the social media platform broadcasts the user’s “like” of the law practice on other users’ social media feeds, lawyer’s offer of an entry in a giveaway for a prize to social media users in exchange for the user “liking” the law practice’s social media account violates Rule 7.2(b).

    The opinion further warns that the plan may violate the ban in SCR 20:7.1 on lawyer’s making false or misleading communications about their services:

    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).

    The problem with the plan is the offer of something of value in return for the “likes.”

    Other incentives that have been found to be prohibited by the rule include giving employees a day off in return for bringing in new clients,2 reductions in fees to clients who refer new clients,3 and discounted fees for clients referred by an insurance agency.4 So, it is not surprising that a chance to win a valuable prize is something of value.

    To be clear, there is nothing in the disciplinary rules that prohibit lawyers from having a social media presence as a marketing tool. There is also no prohibition on requesting that current and former clients (or others) “like” or “follow” a lawyer’s social media presence. What lawyers may not do, however, is to offer someone a valuable incentive to do so.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    • Wire Transfers and Trust Accounts: What's Permissible? Oct. 16, 2019
      Trust accounts are subject to regulation, and the Supreme Court Rule governing these accounts is long and complicated. Turns out, the rule allows a lawyer to send funds from a trust account via a wire transfer.

    • On the Death of a Client, Sept. 18, 2019
      What are a lawyer's duties when their client dies while a case is pending? When does a lawyer's authority to act on behalf of a client end?

    Endnotes

    1 The relevant North Carolina disciplinary rules are substantially similar to Wisconsin’s rules.

    2 Pa. Ethics Op. 05-81 (2005).

    3 Pa. Ethics Op. 93-107 (1993).

    4 N.Y. State Ethics Op. 930 (2013).




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