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Getting Clients Through the Internet:
Understanding and Complying with the Ethical Rules that Apply
Written by: Samuel C. Bodurtha, Esq.
Edited by: David Grossbaum, Esq.
The internet and electronic forms of communication present lawyers and law firms with new and additional means for marketing and advertising legal services, as well as for seeking out and obtaining business from current and prospective clients. The Rules of Ethics in most jurisdictions impact and regulate attorney advertising and solicitation in the digital age. Additionally, the use of law firm websites, third-party websites, and social media demands compliance with the Rules of Professional Conduct. The issue is how lawyers can efficiently and effectively comply with the Rules of Professional Conduct while using the internet and electronic communication in order to advertise, market, promote and generate business.
Law Firm Websites
A law firm or lawyer’s website provides a near limitless means of communication with the public, whether for purposes of advertising, marketing, or securing business from prospective clients. The use of websites by lawyers or law firms to market or advertise their professional legal services must comply with Rule of Professional Conduct 7.1, which prohibits false or misleading communication about a lawyer or the lawyer’s services.
Recently, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued a formal opinion to address the ethical obligations that lawyers should consider in relation to the content and features of their websites. American Bar Association Formal Opinion 10-457 (2010). First, information regarding a law firm or lawyer is, including the firm’s history, areas of practice, specializations, successes, news, and individual attorney’s biographies must be complete in order to avoid being misleading. Additionally, lawyers and law firms update the website information on a regular basis. Updating the information includes removing a lawyer’s biographical information within a reasonable time after they leave a law firm and otherwise regularly update and maintain the website to ensure that all information provided is accurate and current. The practice of updating and maintaining the information on a lawyer’s website can only assist the lawyer in avoiding misleading statements prohibited by Rule 7.1.
The ABA’s formal opinion also endorses a lawyer or law firm’s publishing of specific information that identifies current or former clients, including the scope of the matters represented on a website. Once again, the information must be accurate and current, but more importantly Rules 1.6 (Current clients) and 1.7 (Former clients) require the lawyer or law firm to obtain informed consent to this disclosure before including this type of information on a website. The temptation to publish favorable results, victories and recent successes on behalf of clients must not threaten the confidentiality of information between client and counsel.
A lawyer’s website may also include “legal information” for the general public such as Frequently Asked Questions, Forums, Blog postings, and links to other sites. This information must not materially mislead website visitors and lawyers should make sure that the information is accurate and current. In addition, the information should be accompanied by the author’s contact information, the dates on which the substantive information was last reviewed, and a statement or disclaimer that the information is general and does not constitute legal advice. The ABA recommends such a statement or disclaimer to “preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.” For example, if a lawyer answers a fact specific legal question, especially in response to question posed by a visitor to the website, this information may be characterized as offering personal legal advice. In this case, a disclaimer that the response or information is general in nature and caution that it should not be understood as a substitute for legal advice is necessary in order to avoid any misunderstanding.
Finally, a lawyer’s website can also act as a portal for prospective clients to seek out or request legal services. Visitor inquiries to the lawyer’s website may require compliance with Rule 1.18 (Duties to Prospective Clients). This duty arises when a person “discusses” with the lawyer the possibility of forming a client-lawyer relationship. The ABA’s position is that a website, which specifically requests or invites submission of information concerning the possibility of forming a client-lawyer relationship with respect to a matter results in a “discussion,” as that term is used in Rule 1.18, when a website visitor submits the requested information. On the other hand “if a website visitor submits information to a site that does not specifically request or invite this, the lawyer’s response to that submission will determine whether a discussion under Rule 1.18 has occurred.”
The ABA also recommends the use of warning or cautionary statements to limit, condition or disclaim a lawyer’s obligations to website visitors. These limitations will be effective only if reasonably understandable, properly placed, and not misleading. The appropriate information should be conspicuously placed to assure that the read is likely to see it before proceeding. For example, lawyers may want to use “click through” pages that automatically direct the reader to another webpage containing disclaimers to ensure that visitors are not misled and other confirmatory messages to clarify the nature of the attorney-client relationship.
Online Directories/Online Referrals
Another effective means of marketing a legal services or initiating relationships with a prospective client by electronic means is the use of online directories and referrals. It is important to note that there is a distinct difference between an online directory, such as Martindale Hubbell, and an online lawyer referral service. Colorado Bar Association Formal Ethics Opinion 122 (October 16, 2010). Online directories require compliance with Rules 7.1 and 7.2 (Communications and Advertising). If a lawyer lists his contact information, or is included in the contact information of a law firm in an online directory, such as Martindale-Hubbell, the lawyer, or law firm, should make every effort to ensure that the information provided is accurate and current. Online referral services, however, must also comply with Rule 5.4 (Professional Independence) because of the risk of fee-sharing.
The Rhode Island Supreme Court Ethics Advisory Panel has issued two decisions that relate to advertising and marketing of lawyer’s services through an online directory or referral service. First, in Ethics Opinion No. 2005-01 (February 24, 2005), an internet company called Legalmatch.com asked the inquiring attorney’s law firm for permission to advertise the law firm’s services on its website. The attorney could purchase an annual membership with Legalmatch.com in exchange for: (1) a profile page hosted by Legalmatch.com (much like a personal website); (2) unlimited ability to post advertisements of specific services on Legalmatch.com; and (3) access to anonymous requests for legal services posted by consumers. The website would provide the attorney with a description of its website and services. All of the attorneys who are registered with Legalmatch.com have access to the anonymous requests, and upon reading the requests, all of the attorneys have the option of posting a reply and providing a link to their respective profile and contact information. The Ethics Advisory Panel concluded that the proposed arrangement complied with the Rhode Island Rules of Professional Conduct. The annual membership fee represented the reasonable costs of advertisement permitted by Rule 7.2. In addition, the lawyer’s participation in replying to an anonymous request was not a solicitation prohibited by Rule 7.3. Finally, the lawyer’s payment of an annual fee to Legalmatch.com was not a fee-sharing arrangement prohibited by Rule 5.4, because the fee does not represent any percentage of legal fees obtained and is not in any way linked to the participating attorney’s legal fees.
By contrast, in Rhode Island Ethics Opinion No. 2000-4 (June 14, 2000), the Ethics Advisory Panel found a website referral service impermissible. The inquiring attorney was solicited by a company that was creating a drunk-driving defense internet site. The company wanted to enlist one drunk-driving defense attorney from each of the fifty states to receive professional work from potential clients using the website. Any participating attorney would pay the company an initial set-up fee of $5,000 and consulting fee of $15,000 each time the attorney received gross fees of $100,000 for business generated through the drunk-driving website. The Ethics Advisory Panel found that the proposed arrangement violated Rule 7.2(c) because the consulting fee was payment for recommending the lawyer’s services and was not a reasonable expenses of advertising. Furthermore, the proposed arrangement violated Rule 5.4 because the payment of consulting fees amounted to fee-sharing with a non-lawyer.
Social Media Websites
The rise in use of social media websites such as Facebook, Linkedin, and Twitter is well-known. It is important for law firms and lawyers to remember that when using these social media websites as tools for legal services, the Rules of Professional Conduct still apply. If, for example, if a lawyer creates a Facebook page for his or her law firm or legal practice, the Facebook page is a communication about a lawyer or legal services and must comply with the Rules of Professional Conduct. It is advisable to follow all of the recommendations made by the ABA in the use of a website for communicating legal services including keeping information accurate and up to date and providing disclaimers. In addition, if you are using the Facebook page to generate business, you likely cannot guarantee confidentiality if you communicate with clients or prospective clients on Facebook. While Facebook may be a viable marketing tool, any activity beyond marketing and advertising should not include the use of the Facebook.
Twitter presents a further problem of producing misleading or unauthorized communications. Twitter is an invitation to communicate with the world precisely that which is on your mind. It is the temptation to walk out of the courtroom and tweet to the world the success of a case despite a client’s admitted liability or guilt. The prospects of violating Rule 3.6, trial publicity, or communicating client confidences in violation of Rule 1.6 are too risky to ignore.
CONCLUSION
The use of the new technology by lawyers to generate business is inevitable and also beneficial for them and their clients. However, like all advertising, it is governed by the rules of professional conduct, and lawyers must understand those rules and musts follow them. As the rules were developed before the new technology existed, courts and ethics panels are just now figuring how the ethical rules apply in this area.
Sam is an associate and David is a partner in the Boston and Providence offices of Hinshaw & Culbertson LLP. They represent lawyers in legal malpractice cases, represent insurers in coverage disputes, and also lecture on risk management for lawyers. Sam can be reached at sbodurtha@hinshawlaw.com and David can be reached at dgrossbaum@hinshawlaw.com.
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