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On Balance

Ethically Outsourcing Social Media Management

By Megan Zavieh

It’s a given that you need to delegate or outsource some tasks if you want to grow as a firm. There are only so many hours in a day, and if you try to do absolutely everything yourself, it will mean limited revenues and likely unbearable hours and stress for you. And you are bound to falter on either administrative duties or client matters because it’s impossible to perform all the necessary functions alone day after day.

At the same time, whatever work you do delegate must be done in compliance with attorney ethics rules. I have written on this topic before in the context of various types of tasks that may be outsourced, but the rise of social media and direct advertising methods highlights a new concern: How do you control compliance with attorney advertising rules when you seek to outsource in these areas?

Outsourcing Social Media

Social media is a hotbed of potential ethics violations. It has been an issue in contexts as varied as friending a judge on Facebook to having a client delete unflattering posts.

social media marketingFor ethics and outsourcing, the concern is the lawyer’s control over the strict compliance required for any postings on social media. The debate over whether a social media presence is important in growing a law practice is fading as social media’s influence in the market becomes undeniable. This puts cultivating a social media following high on the marketing priority list. Using services like Buffer or Hootsuite that allow you to schedule social media posts is fine when the lawyer is in control of the content of the posts. But what about hiring a social media consultant to post for you? This is becoming a huge industry, and for lawyers who are either too busy to cultivate a social media following or lack interest in doing so, the idea of hiring someone to do it for you is very tempting.

Content Marketing vs. Soliciting Business

When using social media for business, whether you are writing the posts yourself or hiring someone to do it for you, there are two primary types of posts. One is content marketing. Content marketing is basically demonstrating your knowledge of a subject by delivering useful information to people who may be interested in it. These are your blog posts on topics related to your practice area, articles you have written in other publications that you post links to, and comments on other people’s posts of interest that you share on social media platforms.

The other type of posts are ones directly soliciting business. These are what we would generally think of as advertisements. They highlight your experience, ask people to call you for help on their cases, and make statements to the effect of “I am available to be hired.”  California’s Committee on Professional Responsibility and Conduct issued Formal Opinion 2012-186 in which it went through examples of social media posts and determined which ones are attorney advertising and which were not. The determining factor was whether the posts indicated that the attorney was available to take on new work. (Note that opinion is now five years old, something of an eternity in the constantly changing social media landscape.)

The Difference Is Critical

Content marketing generally does not fall under attorney advertising rules. The rules are designed to protect the public from lawyers trying to get business in underhanded, confusing or oppressive ways. What content marketing really does is convey useful information to the public. The fact that you are the source of the information is intended to lead people to think of you and call you when they need help in your area of expertise; you are not going to cause confusion or be seen as oppressively soliciting business because you wrote an article on a useful topic. So, in general, content marketing posts are not subject to attorney advertising rules.

This makes content marketing a great task to safely outsource. A social media consultant who knows nothing of attorney advertising rules can likely post your content, share it on networks, and drive traffic to your blog through SEO and targeted sharing without running afoul of the ethics rules.

Advertising in which you tell the public that you are available for employment is subject to attorney advertising rules. With these posts you have to be very careful. Some state rules have requirements that simply cannot be met (or cannot easily be met) on Facebook or Twitter — like that every advertisement needs to say “advertisement” and identify the attorney responsible for the ad. You may have no characters left on Twitter for your actual ad.

Paid ads on the social media platforms are also likely to be onerous with the attorney advertising rules.

Every state has its own set of rules, and most social media consultants won’t be familiar enough with how to comply with the rules to do your postings and not step over the lines.

Steps to Take to Outsource Safely

It’s fine to use social media outsourcing help for content marketing. If you are not under the attorney advertising rules, you cannot violate them. Control the posts carefully, however, and make sure you explain to anyone helping you exactly what would cross the line into advertising.

If you do choose to outsource more direct advertising, make sure you work with someone familiar with the legal industry. In many respects, I like to look outside of law to find people who know the platforms first, with the industries they have worked in a distant second in terms of hiring criteria. But when you are seeking help in an ethically critical area, hire someone who knows the field.

Then, pay strict attention to everything that goes up on social media. You may think this defeats the purpose of having help, and it certainly cuts into the time-savings you gain from hiring someone. However, the need to keep strict control is paramount, and you will still gain a lot from having help. For one thing, your posts will actually go up on a regular basis (which they likely won’t if you try to do it all yourself), so your presence will grow. Plus, you gain the benefit of your consultant’s expertise in how to cultivate a real following. But in the end, you are responsible for everything that goes out under your name.

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. Her latest book, “The Modern Lawyer: Ethics and Technology in an Evolving World,” (ABA 2021 ) covers how to run a modern practice while staying in line with current ethics rules. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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