From left: Patricia Beitler President of Velocitas and Roger Slade of Haber Law.

There is obviously great competition for clients in the legal marketplace. What started as advertising on matchbook covers slowly evolved into bus stop advertisements, billboards, radio advertisements, and, eventually, television. Now, social media is all the rage with law firms jockeying for position on Facebook, Instagram, LinkedIn and Twitter. Some practitioners get straight to the point with direct advertising while others try the more subtle approach of a blog post or other informational release such as a scholarly article or legal update.

Florida lawyers know that there is sometimes a fine line between information releases and an advertisement. When it comes to advertising, Florida lawyers must satisfy the dictates of the Florida Bar that scrutinizes lawyer advertising. There are all sorts of things the Florida Bar has determined to be forbidden, such as holding yourself out as an "expert" without the ability for the claim of expertise to be objectively verified or promising a client a result in a particular case. Nonetheless, the advent of social media has placed lawyer communications with prospective clients in the cross hairs of the Florida Bar's increasing scrutiny of the social posts of Florida lawyers.

This appears to be particularly true when lawyers target clients to become representatives in class actions. The latest regulation change for social media was announced recently, as a result of the Board of Governors' January meeting in which the board overturned an 8-3 decision by the Standing Committee on Advertising regarding a lawyer who wanted to use information directed to prospective class action members on social media platforms in order to target specific ads to their social media feeds.

The Florida Bar determined that direct solicitation rules (and not the general advertising rules) apply to targeted social media ads. Lawyers who want to use targeted social media advertisements have to comply with Bar Rule 4-7.18(b). That rule prohibits lawyers from sending written or electronic communications, "directly or indirectly" to potential clients unless it involves a personal injury, wrongful death, or other accident or disaster-related matter that occurred at least 30 days before the communication. In other words, Florida lawyers are not permitted to communicate, directly or indirectly, with accident victims less than thirty days after the event in question takes place.

Those lawyers who seek to communicate with prospective class action members would be well advised to follow the Florida Bar's general advertising rules that can be found at Rule 4-7.13 (regulating deceptive and inherently misleading advertisements), Rule 4-7.14 (defining potentially misleading advertisements), Rule 4-7.15 (discussing unduly manipulative or intrusive advertisements) and Rule 4-7.16 (defining presumptively valid content). While the Florida Bar did not provide its specific rationale for the newly defined approach to regulating social media directed to potential members of a class action, at least some of the rationale may be intuitively obvious. A flood of media that has occurred over the last several years has publicized record attorneys' fee awards for class action lawyers. Members of the general public may be misled into believing that acting as a representative in a class action is a way to make easy money. In reality, however, in most class actions, the lawyers typically earn more than the class action representatives.The scrutiny of social media advertising to potential class action members increases the likelihood that they will begin any foray into class action litigation fully informed.

To ensure your social media advertising plans are in line with the latest regulations, contact the Florida Bar Ethics and Attorney Advertising department at 850-561-5780.

Patricia Beitler is president at Velocitas Interactive Marketing + Public Relations in Miami. She advises clients on communications strategies, digital marketing, social media and public relations. Contact her at [email protected].

Roger Slade is a shareholder at Haber Law in Miami. He concentrates his practice in commercial and business litigation, international business law and litigation, shareholder and partnership litigation, and family law litigation. Contact him at [email protected].