There are ethical concerns in the use of social media coupons, and whether their use by lawyers seeking new clients is in compliance with the Rules of Professional Conduct depends on a number of factors. Washington Advisory Opinion 2139 states that there is nothing inherently wrong with offering discount coupons, as long as they are honored according to their terms. Although there is not a Washington Advisory Opinion specific to Groupon, it is important to note that a number of other jurisdictions have stated clearly that use of social media coupons (such as Groupon) in this context can lead to violations of several Rules of Professional Conduct if crucial issues are not addressed. See New York State Bar Association Opinion 897; Indiana State Bar Association Opinion 1 of 2012; and South Carolina State Bar Association Opinion 11-05, among others.
Here is a list of factors that attorneys must consider:
- A lawyer must comply with the RPCs governing attorney advertising. When using social media coupons or any similar communication to a consumer, the lawyer must ensure that the communication does not contain any false or misleading statements regarding the lawyer’s services. RPC 7.1
- A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertisements or communications. RPC 7.2 (b)(1)
- A lawyer may not directly or indirectly solicit a prospective client with written electronic communication unless certain requirements are met. RPC 7.3 (b)
- A lawyer’s fee is typically not earned until legal services are provided. Arguably, the funds initially received for a social media coupon would need to be safeguarded pursuant to RPC 1.15A. If a lawyer declines or terminates representation, then the lawyer must comply with RPC 1.16(d), which requires that any unearned fee be refunded.
- A lawyer must conduct an interview with the potential client to determine whether the representation presents a conflict of interest. 1.7(a)(2). The lawyer should also use the initial interview to evaluate whether she/he can competently represent the client under RPC 1.1 and to determine the scope and/or limitations of representation RPC 1.2.
Many ethical issues are implicated, and with the increasing use of social media to market services, every lawyer would benefit from a check of the RPCs to ensure that discount advertising is ethically appropriate. Remember, you can always call the WSBA’s Ethics Line for ethics advice at 206-727-8284.
Jeanne Marie Clavere. Jeanne Marie is the WSBA Professional Responsibility Counsel and advises members of the bar on the Rules of Professional Conduct as they apply to WSBA Advisory Ethics Opinions and the Rules for Enforcement of Lawyer Conduct. Prior to coming to the bar in 2010, Jeanne Marie was in private practice in King and Snohomish County for over 20 years.
Contact Jeanne Marie at jeannec@wsba.org.
