Lawyer advertising has been a headache since the U.S. Supreme Court decided issues involving a small newspaper advertisement in Bates vs. Arizona State Bar in 1977. That’s when it was decided that lawyers would be allowed to advertise their services, so long as it was done in a way that wasn’t misleading. Of course, there was no such thing as the internet then, but when the internet did arrive, law firm websites weren’t far behind. So were the various state ethics and disciplinary commissions. Here are some of the issues that they started raising:
- Whether client testimonials and endorsement would be permitted.
- Should disclaimers be required on attorney websites?
- Should past settlements and verdicts be published?
- What about an attorney holding himself or herself out as a specialist?
As internet advertising and marketing expanded, so did the ethical legal advertising issues that were put under the microscope. Other issues that arose later included some of the following:
- Accuracy of attorney profiles.
- Blog entries.
- Responses to online reviews of a lawyer’s professional services.
- A lawyer’s social media posts, whether on their own page or website or not.
The Model Rules of Professional Conduct:
The American Bar Association (ABA) has been providing guidance on website content issues since the advent of law firm websites. Anybody seeking that guidance must start at Section 7 of the ABA Model Rules of Professional Conduct(ABA MRPC).
Model Rule 7.1 Information About Legal Services:
“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.” This ethical prohibition is the guiding light. It overrides all other similar provisions in the ABA Model Rules.
Social Media Profiles:
When a person has Esquire after their name or Judge in front of it, professional ethical obligations might also extend to social media profiles and posts. Both the ABA MRPC recognize these obligations. Certain states have also adopted this position, depending on the statement posted and its context.
Solicitation that Might Be Prohibited:
ABA MRPC 7.3 involves solicitation of potential clients. It states as follows: “Solicitation or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.” What comes to issue is that the internet allows an attorney to communicate with the world.
You Might Not Know Who Your Friends Really Are.
There are exceptions to this rule involving other lawyers, friends, family, people who the soliciting lawyer had a prior business or professional relationship with and people who routinely use the type of legal services offered by the lawyer. In the context of a friend, consider a Facebook friend who an attorney has never met in person. If that person was severely injured in an accident, does that make him or her a friend under ABA MRPC 7.3? Probably not, and that’s likely to raise a red flag if there’s a solicitation by the attorney for legal services.
Disclosure of Confidential Information:
The ABA MRPC are replete with admonitions regarding past, present and possible future clients. The ABA recommends that lawyers obtain permission from these clients if any information is to be posted about them on a website. The various states go both ways on this issue. If somebody who is nosey enough can dig deep enough to find out who a past, present or future client might be that confidential information was posted about, a lawyer might be in violation of a state’s code legal ethics.
Getting Hired by Accident:
Engaging in conversations with other people online, participating in a question and answer forum and other online communications might result in an unintended attorney and client relationship. As per ABA MRPC 1.18, even if no attorney and client relationship exists, if an attorney learns information from a prospective client, it must be kept confidential. If an inadvertent conflict of interest arises, the lawyer should disqualify himself or herself, notify the parties accordingly in writing and take reasonable precautions against acquiring additional potentially compromising information.
Don’t Participate in the Unauthorized Practice of Law.
A public Facebook comment can go from coast to coast in a single second. As an attorney, if you choose to communicate with non-attorneys, his or her remarks will be subject to the legal ethics of the jurisdiction that you’re licensed in. According to ABA MRPC 5.5, a Facebook comment could be construed as engaging in the practice of law in a jurisdiction that you’re not licensed to practice in. A lawyer can be reported and disciplined in the jurisdiction where he or she is licensed. A happy birthday and many more from an attorney in Los Angeles to a Facebook friend in New York City is perfectly permissible. Sounding off on New York rules of evidence in a personal injury case probably isn’t.
Ratings and Testimonials:
Lawyers and law firm must be particularly cautious about ratings and testimonials that appear on their websites. Many states won’t allow or significantly restrict these types of advertising. If ratings and testimonials are going to appear on a law firm’s website, lawyers must be careful about complying with applicable rules in their state. Ratings and testimonials are even for sale over the internet. Don’t even think about buying them.
You don’t want potential or existing clients to have unrealistic expectations. Each page of a law firm’s website should have a specific disclaimer on it clearly stating that the website is legal advertising that is for informational purposes only and should not be construed as legal advice or form any type of an attorney and client relationship.
On the last page or “Contact Us” page, another disclaimer should appear. At a bare minimum, it should recite the following:
- Nothing on the website should be construed as legal advice. No attorney and client relationship will result from the use of the website by a reader without a written retainer agreement.
- Readers are not to send confidential information through the website or through email unless an attorney and client relationship has first been established. Do not assume confidentiality of the website.
- No prior result of a case published on the website operates to guarantee that a future result will be the same. Every case is different. The attorneys cannot guarantee a specific result on any case that you might have.
- The website is intended to comply with the Code of Professional Conduct in whatever states that the law firm practices in.
Attorneys can obtain specific disclaimer information from their licensing authority. A Code of Professional Responsibility operates much like a statute, but it’s specifically focused on attorney ethics. If you believe that an attorney or law firm’s website has misrepresented or omitted material facts or has otherwise been deceptive, contact you’re state’s bar association. You will be referred to the proper licensing authority.
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